LLTLL.

*d,11*il[*le il*
i r* * t,l
L=auaailLt' *F'
L*{t
I {* j

Lrr **L*udeilet
Table of contents

Preface """"""""""""iii
Table of contents """"iv
Table of cases..... """"' x
CFIAPTER ()N8...........i.......-.".-...' """"""""" I
ENGAGEMENT.......... """""""" 1
1. 1 Engagement under customary law """""" """"""' 1

1.1.1 g,ssentiat requirements of engagement under customary law...2

1.1.7 CapacitY.'.'
1.1.3 poimalities """"""""""""'2
1.1.4 Consequences of an engagement under customary law """""' 2
1.1.5 Termination of an engagement under customary law """"""'"3
1.2 Engagement under cofilmon law """""' """"""""3
1.2.1 Essential requirement of a customary engagement """" """"'4
1.2.7 Terminationof the engagement under common law""""""""5
Damages for breach oi the engagement under common law
..5
I.2.3
1.2.4
Return of Engagement gifts """"""""' 6
CHAPTER TWO......... """^"""""" 8

THENATUREoFMARRIAGEUNDERTHEMARRIAGEACT.B
2.I legal requirements for the conclusion of a valid marriage ...'...9
2.1.1 Pirental consent.....- """"'9
2.t.2 Effect of a minor's mariage without parentalconsent..........10
2.2 Capacity to marry.... """'12
2.2.L Individual capacity to marry """"""'12
2.2.2 Lack of age'...'..'.... """"'12
2.2.3 Persons who are insane """"""""""' 12
2.2.4 Persons who are already married """' 13
2.3 Capacity lo marry each other """"""' 14
?.4 Peisonsof the same sex '.."'..'... """"' 16
2.5 Publication of banns..'. """""""""""' 16
2.5.1 Restrictions on the publication of banns"" """""17
?.5.2 Discovery of an impediment""""' ""' 18
2.6 Special licence.....'. """""' 18
2.7 Solemnisation of the rnarriage """""""" """"""' 19
?..7.1 Civilceremony.....".'... """""""""""' 19
2.7.2 Religious ceremony.' """'2I
2.8 Regfttration of marriages..'.."""' """2I
2.g Offences relating to tht marriage ceremony" """21'
 ..,.,..."....,23
CHAPTER THREE.....
LEcAL coNSEou;NCss or A MARRIAGE """""""' """""""'23
""""""" ""'73
3.1 lnvariable consequences """"'26
3.2 Variable Consequences""--""'
applies ":"""':"""" """"""""'2,8
3.7.1 Marriages '"^*f"i"ft the MPPA
of.coilmunity of property """"'29
3.2.2 Advantages'";;;ti'gt out is inuppricaur" " "" " """"""""' 30
3.3 Marriage t" *li"rt idrt'rPPA
power """""""""30
3.3.1 Marital pow.er"""" """"""""""'32
3.3.2 Abolition of the marital """""""""32
3.3.3 Equal *'"tg"*-"ioi't'".ioin'estate
each other """"""'33
3.3.4 Protection oT *pou'"'-ugainsl'
.;;"ttvto litlgate ""':':"""""' "" " ";-: ^ ""'............
3.3.5 Spouses'
of property reglme""""""""'J-
31
3.3.6 Advantages of ttre community .'".36
CHAPTER FOUR tAw """"""""'36
MARRIAGEuNDdR'CuirorurARY
4.1 Nature of marriage ofunder customary li:.:' ' " '...-.it
a customary marnage
;:.; Essential elements """""""""37
4.2.I Consent of the parties"""'
**'y und to marry each other"""'38
4.2.2 Capacity of the parties'o
""""' 38
4.2.3 Individual capacity """"":""""
'................'33
4.2..4 Capacity to marry each gther,'t-; -^"""""
4.2.5 Request for the woman in marnage """"'40
4.2.6 Payment of bogadi """"'40
4.2.1 Quantum of bogadi"',"""""""'
"""""""""""'41
4.2.8 Significance oi'bttgadi"':"""""""
uJJiry of Isramic marriage -......41
4.3 Essentiar conJitio* for themarriages """""""" """""""""""42
4.4 Registration of customary marriage ""':"""""""""""""""""44
4.5 Conversion of customarya new malriage? ""':"""""""""""""'45
4.5.1 Is the second marriage ""'46
noes tttesecond mairiage "ono"t
t6 existing marriage?
4.5,2 property rights """"""'41]
4.6 Customary marriage and
"""""""'52
CHAPTER FIVE""""' "'"'''"'""''52
DISSOLUTION;F MARRIAGE """"""52
5.1 Death of a sPouse;;l oi*ror"tion of marriage """"""""'52
s.z rr.ru*i,i#;ru;,h """"""""""53
5.2.1 ff,, "o*-on law position"""""""" """"""53
5.2.2 Statutory position ' .'-:^ """""""'55
5.3 Divorce jurisdiction custlmary-T:::gt- ' '
5.3.I Courts having in .,,..::
5.3.2Courtshavingjurisdictioninstatutorymarnage...lrl...t..........J\J
 5.3.3 Bases tbr assumption of jurisdiction"""' """"""'56
5.3.4 Domicile "'.""56
5.3.5 Change of domicile """"57
woman"""
5.3.6 Domicile of a married """" 61
5.3.7 Residence ""'61
5.4 General matters affecting action for divorce """'63
5.4.1 Restriction on divorce wittrin two years of marriage..............63
5.4.2 Exceptional hardship and exceptional depravity """"""" """64
5.4.3 """"""""
Financial protection-for det'endants ""'68
Reconciliation..'.".'....'
5.4.4 ""'-70
5.5 divorce
Ground for """""71
5.6 Facts which may be evidence of breakdown of amaniage.3z
5.6.1 The defendant has committed adultery - section 15 (1) (a) "'72
adultery?...
5.6.2 What is """"'72
5.6.3 Sexual intercourse for the purpose of adultery """"""".'"""' 73
5.6.4 Proof of adultery. """"""'73
5.6.5 Confession and admission."""""" """""""""""'74
:::
5.6.6 Circumstantial evidence """"""""""'75
5.6.7 The alleged adulterer.... """""""""""76
5.6.8 Intolerability '..'.........'. ""'77
5.6.9 The quantum of evidence of intolerability"""""""""""""""78
5.6.10 Awaid of darnages against a co-defendant in adultery.'... -..-..79
5.7 The defendant lias behaved unreasonably section 15 (1) (b)..80
5.7 .IThe test for behaviour ......"""" """"" 81
5.7.2 Examples of behaviour sufficient for section 15 (1) (b).........82
5.7.3 Behaviour arising from illness """""'84
h; (1) (c)..86
5.8 The defendant deserted the plaintiff - section 15
5.8.1 Simple desertion.'. """""'86
5.8.2 De iactoseparation.. """'86
5.8.3 Animus deierendi """"""87
5.8.4 Absence of consent """"88
5.8.5 Absence of just cause'........ """"""""88
5.tt.6 Constructive desertion. """""""""""'89
5.S.7 Termination of desertion '..'..."""' ""' 93
5.8.8 When the spouses resume cohabitation """""""""""""""""93
5.8.9 Supervening agreement to live apart""""" """""93
5.8.10 Supervening court order....""" """"" 93
5.8.11 Supervening animus revertendi" """'93
5.8.L2 Supervenin! hsanity'. """""""""""'94
15 (1) (d) 96
5.g Thf parties-have lived apart for two years section
 \'11

5.10 Bars to divorce ...............98

5.10.1 Failure to prove any of the tacts specified in s.15 (1) MCA ..99
5.10.2 Proof of facts specified in section 15 (1) ..........100
CHAPTER SIX ........... ..............10t
JUDICTAL SEPARATION........... ............... 101
6.I The necessary conduct................. .'l}z
6.2 separation.. ...........1{}Z
Effect of a decree of judicial
CF{APTER SEVEN..... ..............104
NULLT]Y OF MARRIAGE............... ........104
7.1 Grounds rendering a marriage a nullity .............105
7.2 Void marriage............. ...106
7.3 Voidable maniage.... ....108
7.3.1" Consummation........... ....108
7.3.2 Wittul retusa1...,... ...........108
7.3.3 Just excuse ... 109
7.4 Restriction on the granting of a nullity decree...................... 115
7.4.I Ignorant of the facts........... ............... 151
7.4.2 Proceedings to be instituted within a year of the marriage... 1L6
7.4.3 Maritalintercourse .........116
7 .5 decree
Effect of a nullity .................. 116
CHAPTER EIGHT...... ...............118
ANCILI-A,RY RELIEFS.....,....... .................. 118
8.1 Alimony.... ....118
8.2 Financial provision for a wife ..........118
8.2.7 Fortune of the wife........... ................ 119
8.2.2 Husband's ability ..........nA
8.2.3 Conduct of the parties .....................120
8.2.4 Form of award........ ........122
8.3 Financial provision for children of the maniage ....,.............122
8.4 Property rights on divorce ...............1?4
8.5 Exercise of the power conferred by s.13 MCA.................... 125
8.5.1 Who is subject to customary law? ...125
8.5.2 Marriage in.community of property.............. .....126
8.5.3 property
Maniage out of community of ............128
8.6 maniage
Custody of children of the ................... 130
8.6.1 custody.
Principles governing the award of ......, l3l
8.6.2 ...........
Custody of children of tender age ..........133
8.6.3 Custody of a son /daughter... ............134
8.6.4 Custody sFould not be given to an immoral parent..............135
8.6.5 Wishes of the child may be taken into account ....................135
 vlll

6.6.6 A child's existing associations and environment .................136

8.6.7 Malerial advantage of one parent ... 136
CHAPTER NrNE .....................137
ASPECTS OF PARENTAL POWER ............ ............... 137
9.1 Adoption... ............"........138
9.1.1 Who may adopt? ...........138
9.7.2 Who may be adopted? .....................139
9.1.3 Where to adopt? ...........139
9.1.4 Irgal effects of adoption .................140
9.1.5 Rescission of the adoption order......... ...............142
9.1.6 Miscellaneous provisions concerning adoption.,..................143
9.7 Maintenance of a child born out of wedlock .....144
9.3 Custody of children born out of wedlock ..........147
CHAPTER T8N.......... ..............149
ouTLlNE OF PROCEDURE .....................14q
1U.1 Acting for the plaintiff..... .................149
10.1.1 Applying fbr leave to bring acrion for divorce ..................... 149
14J.2 Initiating action for divorce. .............1S4
10.1.3 Drafting the Declaration............ ..."...154
10.2 Amendment of summons/declaration.............. .....................L62
10.3 Service of the summons ...................162
10,4 Acting for the defendant/co-defendant ................................. 163
10.5 Entry of appearance............... ..........167
10.6 Failure to enter an appearance.............. ...........,.L67
1{}.7 Defendant's consent to divorce .......167
10.8 Reply to defendant's plea ................169
10.9 Preparation for trial .......17t)
10.9.1 Discovery of documents................ .....................170
L0.9.2 Inspection of discovered documents.....................................170
10.9.3 Admissions ....................171
10.q.4 Pre-trial Conference .....17I
10.q.5 Entry for tria1............ ....172
1t1.9.6 Setting down the case fcrr trial...... ..,.172
10.10 The trial .....173
10.10.1 Undefended case .........I73
10.10.2 Defsnded case........... ...I74
1(1.10.3 Absolution from the instance .........I74
1il.1tl.4 Defence..... ....................175
r ir. 1 1 The divorce decree .......175
r I I
- '. Rescission of the rule nisi ............... L77
 lx

10.13 Recognition of foreign divorce decrees ............. 180

Index ... 184
 Table of cases

Cases

Abromowitz v. Jacquet & Aaor. 1950 (2) S.A.Z47 (W)........... ... 153
Adams v. Adams (1984) 5 F.L.R. 768........... ............ 136
Adeoso v. Adeoso [1931] I Alt E.R. t07............ ......... 87
Akere v. Akere [19621W.N.L.R. 328........... ............... 64
Alston v.Alston 1194612 AII E.R. 62.............. .............g2
Andries Kangooyui v. commissioner of Customary Courts & ors. Misca. No.
) ...............
F1"61L996 (26 September 1996 unreported
.............. 49
135............
Armitage v. Attorney General[1906J p. ................... 1g1
(CA)..
Armstrong v. Armstrong(L97\ 118 S.J. 579 ...................121
Ash v. Ash [1972] l All E.R.582........... ..................... 8i
Attorney-General v. Malokwane 19..............
[1971] 2 B.L.R. ....... j6
at636............
Austin v. Austin 55 E.R. 634 ............... 133

B. v. B. 19e3 Q) S.A. 211.... ...................747

(T)........
B. v. P. 1e91 (4) S.A. 113
.........147
Bailey v. Tolliday (t952)4F.L.R.542 .....122
370..........
Baipidi v. Baipidi[2000] 1 B.L.R. ................ s7
111............
Baitsile v. Baitsile [1979-80] B.L.R. .........75
Bale v. Bate [1975] B.L.R.44.............. .... 159
3g8............
Barnett v. Barnett [1956] 1 All E.R.
..........73
Bashe v. Bashe [L977] B.L.R.52............. .................... 76
E.R.387...........
Baxter v. Baxter 1194711 All
........... 108
(C)............
Beattie v. Beartie 1968 (2) p.H.B.8
..........125
Beeken v. Beeken [1948] p. 302....... ........ 88
...........
Beira v. Beira 1990 (3) S.A. 802 (W) ..............2s
...........
Bell v. Kennedy [1386.1 L.R. 1 Sc & Div. 307 ....................56
Bendell v Bendell 1914 CpD S99........... ....................61
E.R.539...........
Bennett v. Bennett [1969] 1 Alt
....... 110
Benvenuti v. BenvenutilgT? (3) S.A. 5g7
0^D ...........87
473...........
Biccard v. Biccard & Fryer (IBlZ)9.S.C. .................... j3
473............
Biccard v. Biccard and Fryer (1592) 9 S.C. .................79
79.............
Blackwell v. Blackwell (i,974) Fam. [,aw .................... 66
 xi

Bodulala v. Bodulala (2) $979-801 B.L.R. 263........... .................. 82

Bodulala v. Bodulala [1979] B.L.R. 103, .......... ........... 83
Bogopa v. Bogopa MC. No. F12rll996 (27 November 1997) unreported.... 131
Borotho v. Borotho [1995] B.L.R. 359........... ............ 114
Boswell v. Van Tonder L975 (3) S.A. 20 (A.D.)....... ................... 141
Botswana Housing corp. v. First National Bank of Botswana [1999] I B.L.R.
3I4........... ........174
Botswana Insurance co.(Pty.) Ltd. v. Keolebogile civil Trial No. 4g5ll9g4,
(30 August 1990), unreported ................76
385...........
Bowmaker v. Bowmaker 1946 N.P.D. ....... 94
In............
Bowman v. Bowman [1949] 2 All E.R. ..... 65
335...........
Bright v. Ngakantsi [2003] 2 B.L.R. ..........7s
Buchler v. Buchler 119471?.25.......... ....... 90
713...........
Buchling v. Buchling 1909 T.S. ............... 102

C. v. C. (Divorce: Exceptional Hardship) [1930] Fam.23 .............64

Cackett v. Cackett [1950] P.253 ............. 109
Calderbank y. Calderbank [1975] 3 Alt E.R. 333............ ............. 119
Calitz v. Calitz '1939 A.D.56............. ...... 131
Chamani v. Chamani 1979 (4) S.A. S04 (W).... ..........26
Chaplin v. Chaplin [1948] 2 All E.R. N2 ........... ....... 116
Chard v. Chard [1955] 3 AII E.R. 721........... ............. 53
Clarkson v. Van Rensburg 1951 (1) S.A.595 (T)............ ............25
Cleary v. Cleary and Anor lL97411 AII8.R.498............ ............... 7g
Coetzer v. Coetzer 1955 (1) PH 81 (0)............. .........1"27
Cohen v. Minister for the Interior 1942T.P.D. 151......... ............ 141
Corbett v. Corbett (Orse Ashley) [1970] 2 All E.R.33............. g, 107
Cronje v. Cronje 1907 T.S.87 ............... ... 131
Crossley v. Crossley 1912 W.L.D.49............ ..............92
Cruickshanks v. Cruickshanks 11957] 1 All E.R.889.".......... ......... 60
Cumbers v. Cumbers {197411W.L.R. 1331.......... ......7O
Cuming v. Cuming 1945 A.D. 20L........... .................. 30
Cuzner v. Underdown$97{] 2 All E.R. 351........... .. tLz
 xll

Dambuza v. Dambuza and Mmedi MC 6311977 (31 August 1979), unreported75

Dance v. Dance (2) 1197618.L.R. 43 ............. ....... 59,77
Dance v. Dance [1975] 2 B.L.R. 39............. ................ 59
100.......
De Reneville v. De Reneville 119481 P. ....... 104
De Young v. De Youngl97l (2) SA 90 (C)....... .........94
D-e. v. A-g {18a5) 1 Rob. Eccl.279 ..........73
Dennis v. Dennis [1955] P. 153. ................73
Derby v. Derby.1921 W.L,D. 27 ............. ..................... 94
Dhanabakium v. Subramanianl943 A.D. 160... ........144
Diamond Fields Advertiser Ltd. v. Colonial Government (1909) 10 H.C.G. 258
....... 166
Dibotelo v. Dibotelo [1988] B.L.R. 353............ ...........74
Dixon v. Dixon (1974) 6 Fam. Law 58 ....722
Dorcas Makone v. lrsego Ntsiapane MC F51311993 unreported............44,47
Douglas v. Meyers 1987 (1) S.A.910.. ..147
.............
Dredge v. Dredge [194711 All E.R. 29 ........ 108
Drew v. Drew (1888) 13 P.D. 97............. ...................88
N.P.D.345....".....
Driffill v. Driffill 1942 ................... 102
(SCA)
Du Plessis v. Road Accident Fund 2004 (1) S"A. 359 ....... 16
unreported
Dube v. Dube MC 4111980 (8 August 1980), ........ 63, 83
822...........
Dunn v. Dunn [1948] 2 All E.R. ................92
Dunn v. Dunn 119671P.217 .... 90

........
Edelstein v. Edelstein \952 (3) S.A.1 .".........".... 126
Edwards v. Edwards [1948] 1 All E.R.157........... ...... 91
Edwards v. Edwards 1943 T.P.D.309......... ................ 89
5...............
Egner v. Egner ['1974] 2 B.L.R. 24,57
Erasmus v. Erasmus 1942 A.D.265 ,.......... ................ 30
717............
Estate of Fuld (deceased) (No.3) [1966] 2 W.L.R. ....... 60
3................
Etherington v Etheringtonll9T{) 2 B.L.R. 63" 158
Everitr v. Everit [1949] P.374........ ........... 93
Evomja v. Evoroja [1961] W.N.L.R. 6............... ,........75
Ex parte Commissioner for Child Welfare: In re Adoption Volczer 1960 (2)
s.A.312 (O)........... ........... 138
Ex parre Dodds 1949 (2) S.A.311 (T)............ ............24
Ex parte Durbach 1948 (2) S.A. 410 (E)............. ...... 103
 xlll

Ex parte Estate Russel 1920 W.L'D' i1.'......'... """"" 53

Ex parte Judaken 1953 (4) S.A. 239 (T)..'..'...'.. """"' 24
Ex parte Oxton 1948 (1) S.A. i011 (C) .".. -"'. """"' 104
..
Ex parte Parker 1947 {3) S.A. 285 (C).....' .. """""" 53
.
Ex parte Pieters 1993 (3) S.A. 379 (D).'...... """""" 53
Ex parte Stern 1976 (2) S.A. 273 (C)...'. """""""""' 180
Ex parte Van Loggerenberg 1951 (1) S.A- 771 """"" 10
Ex parte Veen, Re Infant Otlogetswe Kgosietsile [1978] B.L.R. 43 ..............132
(C).....'-....
Ex parte Verster 1956 (1) S.A. 409 """""' 53
(C)'.......-...
Ex parte Willis 1947 {4) S.A.74i} """""" 125
...'.....
ExCeil v. Douglas 1924 C.P.D . 472 ."'.""""""" 25
Eynon v. Dutoit 1927 C.P.D.76.......-... "' 111

F. v. B. 1983 (3) S.A. 948 ...'.147

F'. v. L. Ie87 (4) S.A.525 (w)........... -.-...137
Faulkner v. Faulkner [19411 2 All E.R. 748..."'-..... .'....92
Fay v. Fay [19321 A.C. 835 64,66
Feldman v. Feldman 1949 (3) S.A.403 (AD)......"' ..'.. 91
Fender v. Mildmay 1193713 All E.R. 4A2.'.....'.'. ....'. 176
Fitzgerald v. Green 1911 E.D.L. 458' ......-21
Fletcher v. Fletcher 1948 (1) S.A. 130 (A)...... ..... -....134
Fordy v. Fordy[19gS] B.L.R. 48.............. .....-"..'........ 133
Fourie and Another v. The Minister of Home Alfairs 2003 (5) S.A. 301 ........ 8
Frankel NO and Ors. v. Sechele [1964] B.L.R' 5 '.........'.... '.........27
Fraser v. Children's Court, Pretoria Norlh & Ors. 1997 (2) S.A. 261 (CC) 148
French v. French 1,971t4) S.A. 298 (W).......'." .'....." 132
Frichol v. Frichol 1945 T.P.D .276......... '..'.'.'..."'.-.. 120
Froneman v. Froneman 1972 (4) S.A. I97 (T) ..".'...".. 91

G
 XV

J. v. C. [1926] Ch.676 """""' 136

Jeffreys v. Jefireys [1973] 1 B.L.R.42.....-'...... """""" 58
Jodla v. Jodla [196(l t att E.R. 625.... ."" 110
Joshua v. Joshua 1961 (1) S.A' 455 (G.W.) """""""' 112
Joubert v. Tarry & Co. 1915 T.P'D.277 '........ """""' 129

K
281....-.'....
Kalabeng v. Kalabeng [1983] B.L.R. """"' 82
rl*
Kanane u. (CA).."
State [xtO:] t B.L.R. 67 .."'... 16
j 426.......'.-.
Kassim v. Kassim [1962] ett e.n. .'...."' 45
Katzv.Katzfl9zli: atfn.n.7r9 ......... ..'.....'......'.."' 84
Katzenellenbogenv. Katzenellenbogen 1947 (2) S.A.528{W)... ..........'.'. 136
Kaunda v. Pholi Civil Case No. 1988/1992 unrcported (6tn September 1996)
High Court, Lobatse """23,79
Kaurv. Singh llgl2l1All E'R.292........... """""""" 1tl9
Keiraile v. Keiiaile MC 6/1989 (24 October unreported
1995) , " 133
...'.......-.'.
Kenyon v. Kenyon and Jenkins 1197411 B.L.R. 2 """"" 60
Khamane v. Khamane [1976] B'L.R'22............' """"'72
(O)
King v. King 1"971 (2) S.A. 630 .'........ 91
123...
Kleinwort u. Kltin*ort Lg27 A.D. """"""""""' 73
1106......-.'.
Kokosinski v. Kokosinski [1980] 1 All E.R. """"""' 121
Kotze v. Kotze & Cam Civil Trial No. 6711969 (8 October 1977) unreported
23,75
Kotz6 v" Oosthuizen 1988 (3) S.A. 578 (c)...... ..."'....' 33
Kroon v. Kroon 1986 (4) S.A. 616 (E) .'.'..."'.- ,.*"""25

L
16..............
L. v. L. (falsely called W) t1SSzl 7 P.D. .' I1'2
(T).'...."'....
Lamb v. Sack 1974 (7) S.A. 6?0 .'.."."""' 144
4A2...........
Langv. t-ang [1955] A.C. ....."' 89
332........'..
Lange v. Lange 1945 A.D. """ 12
51?
Le Mesurier v. L,e Mesurier [1395] A.C. .""""" 180
A.C.305
l-each v. R. [19121 '"" 99
65.......'....
kdimo v. l-edimo 1940 O.P.D' """"""""" 90
2sd.672
l-ee v.l-ee (1928) 3 S.W. """""' 113
\dr$r\ssr .\sss\\\\\\S\\.F*\\\\\\--..---.- ""'\\j
 xvl

l,eshiga v. l*shiga MC21611995 (16 April 1996) unreporred .....162

I*sotlho v. Lesotlho MC No. 22711993 (28 May i998) unreported.............. 49
l,eswape v. lrswape [1976] B.L.R. 73............. ........... 4g
l-etlhorna v. Irtlhomaf}l}a] 1 B.L.R. 293........... ....732
lrvene v. I^R.C. [1928] A.C.217 .............. 63
Irwis v. [*wis [1956] 1 All 8.R.375........... ...............62
Lincoln v Lincoln 11974) 2 B.L.R.44.............. ..,....... 15g
Livingstone-Stallard v. Livingsrone-Stallard tr974l2 A1r E.R. 766 ................. g1
Lombardi v. hmbardiLl9741i W.L.R. 1276.......... ....70
Lord Advocate v. Jaffrey 11921) 1 A.C. 146,HL.... .....................57
l-ouw v. Ogilvie l2000li B.L.R. 355........... ............... 25
l,ouw v. Van Rensburg 1982 (3) S.A. 36 (SWA). .... 144
Lydia Gasemokwena v. Baone Molatlhiwa & Anor
[1999] 2 B.L.R. 26 .......14

Mabote v. Mabote [1999] 1B.L.R.386........... .......7,73

Mabutho v. Mabutho [1983] B.L.R. 40]............ ........ 159
Madumetse v. Molapo [1982] 1B.L.R. IA2........... .....79
Mafokate v. Mafokate [2000] 2 B.L.R. 43{t............ ......55
Magibisela v. Mogobe {2A0212 B.L.R.53 (CA) .......144
Makgato v. Makgato MC15711951 (29 April 1982), unreported ..................... T5
Malikita v. Webb [1996] B.L.R. 986........... ............... 23
Malope v. Malope MC 6711986 (11 July 1936) unreported. ......... 133
Mandlbaur v. Mandlbaur 1983 (2) S.A. 213 {Z) .........62
Mandumetse v. Molapo [19S2] 1B.L.R. 102............ .....................73
Mangole v. Rapuleng [1990] B.L.R.450,.......... 2j,73,79
Manser v. Manser, 1958 (1) S.A. 399 (SR) .......... ........74
Manrswaneng v. Maruswaneng MC 173 1982 (12 March 19s4) unreportecl.... 75
Mashabane v. Molosankwe [2000]1B.L.R. 185 ........... ............... 146
Mason v. Mason (1885) 4 EDC 330........... ................ 61
Maswabiv. Maswabi [1999] B.L.R. 384........... ..........66
Mathiba v. Mathiba MC F100/1995 (Z}November 1996) unreporred. ..........I24
Matsholwane v. Matsholwane MC No. 7ltg75 .......... l 11
Matthews v. Haswari 1937 W.L.D. 110 ......... ..........147
Mauwe v. Taolo [2000] 1 B.L.R. 297 ........... ............. 145
Mazile v. Mazile l2t]{llll B.L.R. 175............ ....."....... 130
Mbenge v. Mbenge[1996] B.L.R. 142 (CA)... ........... t}g
Mbish v. Mbish MC 101/1989 (14 April 1982) unreported........."................. 100
Medupe v. Baakanyang [19961 B.L.R. bt2............ ......7g
 XVii

Melamu v. Melamu [1987] B.L.R.310...........

........... 100
Mefswinyane v. Merswinyane 1 B.L.R. 47 (CA)....
[2A04] ..........49
Mfundisi v. Kabeto [2003] 2 B.L.R. iZg..............................
........ r47
Mhlanga v" Mhlanga MC 5\l1g77 (17 May 1g7g), unreported
...... g2
Miziyonke v. Miziyonke lI99Zl2 B.L.R. 396................... .. . ... ..................
14
Modise v. Modise [1991] B.L.R.333...........
..............31
llogwe v. Mogwe Misca No. MC s4rgs {27lury z00r) unreporred.............. zg
Moisakamo v. Moisakamo(2) 1931 (1) B.L.R.1 iA ............. .".27, 124
Mokgethi v. Tsimane (Formerly Mrs. chumal Misca No.4g11995
(30 April
1998), unreported. ....,...52, L76
Mokhethi v. Mokherhi 1974-'/5 L.L.R. 404........... ..... ZB
Mokobi v. Mokobi MC.l7gl1g77 (9 March lgTg),unreported
...... g3
Mokorosi v. Mokorosi 1967-70 L.L.R. 1................................ .....................2g
v.
$ofe{e Molefe [2001] 2 B.L.R. 431 ......."... ............71
Yol.l* v.l\4olefe [2003] Z B.L.R. 157..."....... ............71
Molefe v. Molefe {2004j2 B.L.R. S0 (CA) ...............127
Molomo v. Molomo[1979-S0] B.L.R.250........... 27,124
Mombala v. Mornbala[L976]B.L.R. 31 .........................:.....
.........71
Monametsi v. Monametsi MC S4l1g77 (15tMarch 1978),
unreportecl............. 96
Moolan v. Estate Moolan & Anor. 1gZ7 C.p.D.27 .......'.... ..........162
Moor v. Mgor [1954] 2 All E.R. 458 ........... .............. 173
Morake v. Morake
fIC No. F80l1gg6, (!2 June 7gg6),unreporred............... 125
Moremi & Ors. v. Mesotlho Misca No. 1311996 (g Januar y iSOll,unreporred
.......144
Moreti v. Moreti [2000] 1 B.L.R. L7S ........... .............84
Morolong v, Morolong MC No. 9311997 (11 December 1997)
unreported ...... gl
Morwalela and Phuduhuf_u1'. slare unreporred Daily News
26 February lggs 22
Mosase v. Mosase [1934] B.L.R. 253.."......... ............ 136
Mosime v. Mosime. No. tl}llggl (1{i May 19g3), unreporred ....,...........75
{C
Moss v. Moss [18971p.263..... ............"... 114
Motsumi v. Motsumi-YtIo 164/97 (7 November 1997)
unreported........ 160
Mouncer v. Mouncer [1972J 1 All E.R. 2g9......................:.............................
97
Mphoyakgosi v. Jakol_-
llgl?l B.L.R. 604........... 3,37,44
Mthethwa v. Lebang [1990J g.I_.n. 615........... ...."... 182
Mtui v. Mtui [2001] 2 B.L.R. 333 (CA) .......".............24
Muir v. January [1990] B.L"R. 38S........... ................. 174
Mutemachimwe v. The Law Sr:ciety of Botswana{ZAA2li
n.f-.n.50............ 5B
 xvlrl

NationalCoalitionforGayandl-esbianEquality&ors.v.MinisterofHome
Affairs & ors. ,oi)oiti sl'
r (CC """"" """"""" 16
"""""""' 58
Naude v. Naude LZA021 1 B'L'R'
30' """"""
""""" 87
Naylor v. Naylor tlg6h? ' 253.'::':':;.':"""""' "" 116
75 """"'
Newbould v' Attorney-General [193i] ! """"""23
Ngakae v. Ngakae ieno'' t1e1e--99] |'L'R'
248 """""'
Ngobeni v. Gibitwalo i* ittt tu,.jt (w)"""""' """"""""' 10s
Ngwigrva u. xgwg*l iigi6lil
87""""
I-'R' '
:: :.......;;
Nlerd v. Nield 1908 T'S' 1113 """"'
Nku v. Nku [1ee8] B'L'R' 187 """""' 3l
Noke v. Noke [1"9?91B'L'R' 109""""""
Ltd' 1976 (2) S'A' 153 (E)""' 144
Nokoyo v. AA rrlutrial Insurance Rssociation
November 1996) unreported' """"""""
67'
Ntwana v. Ntwana ft'fi f SOlf 95 Qg
q

o
Oelofse v' Grundlin 91957 (1) S'A'
3lS (C)""' """""25
Ohochuku v. Ohochuku t19601 1 All
E'R' 253"""""""" """""""' 46
oretire v. Gaseitsiw;f$ry1iu,!'.*
2s6"""""' ' il:
Osman v. Osman [1990] B'L'R'
fl|":"""" ,. .. "
osupile v. Bank B;;.;; t19971 B'L'R'
l3s6""""" """"""" 174
"f
ovoya v. ovoya NIC7lLg761)S lune
wlll,unreported """""" 133

Paroicic v' Paroicic t1?5?11 All E'R'

1"""""""" " """
i+\
Perry v. Perry [1952] P' 203;':"':"";""
Peter v. Minister;il-t* and Order
1990 (4) S'A' 6 (E) ' """"" ,;:;; t?:,
Peter v. Peter lle?sl t B.!'L18 """""""' -. -. izs
A:C!77:"
Pettitt v. Pettitt [1e70] .. .. ioz
Pfaff v. Pt'aff (1909) 26 S'C' 221"""""" """ 96
Pheasant u. rr,*rruiilr vliltAll """""'
E'R' 587
Pheasant v. Warne tgZZ n'D'481"""""' ""
" ;;, ttri
Pheto v. Pheto t1e7sl 1B-I1R:I? ioo
-.
Pio v. Button 1946 (Z)T'P'D' 733 """""'
"""""" """"'q2
Posl v. Posl lq:S N'P'p' 1l'l
l.aw i61 (CA) """"" 109
Potter v' Potter(L975) 5 Family
Pretorius v. Pretorius 1948 (4) S'A'
144 tO""""""' "'"""""""""' 10
 xlx

Prinsloo v. Prinstoo*lgsg (3) S.A.

Prinsloo's Curator Bonis v.'Crafford
759.... ................... t17
and prinsloo 190i T.S. 669 .................
Pule v. Pute MC 9g/192g (16 March 13
|gTg),unr*pon.J ...-...
67,7I
Pulford v. Putford
{19231p. 18......... ......... 87
R

R. v. Baldry (1552)2 Den.430............

R. v. Clarke irxol2All E.R. Ms......'." """"""""""74
R. v. R. tlssil 1 All E.R. r1s4 .......,.'... '.-." 103
Rabantheng v.'Rabanthens
!1_?8sl
il.i1. ;4................:........:.:............:...... l!:
Ramosarwa v' Ramosarwa iac lsrtla: 1t: A"grr; it;oi,'unr.oorted .......... 82
Ramotshubi v. Ramoshubi MC 1.50/1gs2
Ramsay v. LiverpoolRcyal
Ql O;be;il#i; unr.porred....... 135
[1930] A.C. s88....-:........ .. ..............58
Rangaka v. Rangaka Misca. tJiggy
29/1996 unreported (13 January LggT)unreportecr

Rangongo v. Rangongc .......132

!!gyltg78 {8 June 197g}unr*p**0. ..134
Ratshosa v. Rarshosa*[197S] B.L.R.
Re Beaglehole 190g f.S. +b......
d............. .........".74
Re c. (A.) (An Infal!,1]lz0l 1An
E.R.30e .................. ............134
Re Flynn v. Flynn t196b] 1 An E.R.
4g.............. .......... 60
Re Fuld's Estare (No 3f
[1e68] pozj ................ s7
lt (Children: care andtontrot)
5.(Minors)
Re P. (Adoption: rT:iltAgeemenr) [Lg77]Fam. 179... ..134
F.L.R. 63s............................. 136
Re Park's Esrare Jt954l p. 89...........:.:.[1e85]
Re phe,ne's rrusr (1szo1r.n. s cr,.
iis........:...............:............:.....:..:::.......:;;
Re S. (rnfants) 1 w.L.R.
[1967] 396......
Redpath v. neafarrr
1re50l l An ER.';iil.................................:......::........ .'.:]!,
Reid v. Reid 1908 T.S.470
Rhodesia Rairways & ors. u. co**irrt"*;;$**. igii;.o. ,lt
ii;ir'.'.'.'.'.'.'...'.
Richards v. Richards
[1?S+t A.C. 175
1 ..,........ ......... 136
Iil..I'. Riley [1e7e1b.ln
Robinson v. Robinson
100............ .... 81
Lryryl r ail g.n. :91.............. ...,..... .... .................121
Romans v. Romans tlSO
1+j S.A.7Z7 fri.............................. ......
Roper v. Roper u"d 10
o17l t-ene'.n. oas ....................................
*"::It ..........77
Rosebaum_v. Margolis f g4+ W.L.n.
Russell v. Russell
M7 ......... ............7q
LI}Z4|A.C.6g7
s

S. v. S" [1954] 3 All E.R. 7 ............... "...... 109

S. v. S. i993 (2) S.A. 301 ..'..147
Sanka v. Kgorla [1968-70] B.L.R. 349 ........... ...........162
Santos v. Santo U97212 Aii E.R. 216............ .'.....'...... 96
Sapsford v. Sapsford [1951] P. 39-t .'.'...".'.72
Saunders v. Saunders [1q65] i AII E.R. 838............ ...................... 9i
Scarr v. Scarr [1971] 1 B.L.R. 44............. ..............."... 58
Schroeder v. Schroeder 1959 (2) S.A 6 {N)........ ......... 93
v.
Schultz Schultz Misca. No. 5i1991 (12 September 1991), unreported..'.-.... 65
Scot v. Selbright [1886] 12 P.D. 21.......-..... ............... 113
Sechele v. Sechele MC No. F311986 (16 November 1988), unreported........... 83
Seedat's Executors v. The Master 1917 A.D. 302...........
............... 8
Segametse Tumagole v. Johnson Tumagole MC (F) 97187 (7 July 1988)
unreported ......... 11
Segosebe v. Segosebe [1995] B.L.R. 527 ........... ........123
Seitshiro v. Moremi Case No. 761L966 (unreported). .............. ...... 3
Sekga v. Pule & Ors.[2000] 1 B.L.R. 16 ...,....... ......... 33
Sekonopelo v. Keetile 1958 H.C.T.R 88......... ..............3
Selio v. Sello & Anrir[1998] B.L.R. 502........... ......... 130
Senabye v. Senabye [2004] 1 B.L.R. 110 ........... 124, 130
Sennye Moloi & Mmakganeka Maleje v. Mmakgomo Mapoyu & Ntshekang
Rankgawana Civil Appeal No. F17i1990, unreported................................ 37
Sethomo v. Sethomo MC No. 261198A (16 June 1980) unreported................. 83
Shaudi v. Shaudi [2003] 2 B.L.R. 163............ ....1,03,123
Shirley Morewane v. Lesego Motlhatledi Civil trial No. 35211983 (15 March
1984) unreported ................... 5
v.
Sickert Sickert [1899] P. 278...,.... .......... 90
sifton v.Sifton [1939] P.221 ..................... 93
Silver v. Silver [1955] 2 All E.R. 614............ ............. 113
Singh v. Kaur (198i) 11 Fam. Lnr' 1952.. ................. 114
Singh v. Singh [1971] P.226........ ............ 113
Slon v. Slon [i969] 1 AII E.R. 759 ............92
Smith v Smith t1924) 5 N.L.R. 1A2............ ."..............28
Smith r,. Smith 119401 P.49.......... ............. 87
Smith v. Smith 1937 W.L.D . 126.......... ... 127
smith v. Smith 1963 (4) 5.A.729 (S.R.)"....... ............ 112
Snowmarrv. Srorxman [934] P. 186 .'.... ta8
Sowa v. Sowa 119611 1 All E.R. 687........... ......',.-.....46 i
 XXI

Stander v. Stander 1929 A.D. 349............ .................. 115

Stanhope v. Stanhape (1836) 11 P.D. 103........... ......I77
State v. Kgwediathukwi [1973] B.L.R. 77............. .....14
Steyn v. Smith 1972 {2) S.A. 656 (RA). ....................... 6
............
Stocker v. Stocker [1966] 2 AI1 E.R. I47 ....... 115
Storey v.Storey [1965] 1 All E.R. 1052.........
8.R.536....,......
Stransky v. Stransky [1954] 2 Atl ....... 62
168............
Sullivan v. Sullivan [1970] 2AIl E.R. ..... 116
333............
Suping v. Suping [2A02] 1 B.L.R. ........,.147
Szechter v. Szechterl197t1P.28|....... ..... 113
T

Tabb v. Tabb 1909 T.S. 1033 .................. 131

263............
Thebe v. Kemodisa & Anor. [2001] 2 B.L.R. ..........,.24
.........
Thelemann v. Von Geyso t9S7 (3) S.A.39 (W). ..................4
Thurlow v. Thurlow [1975]2All8.R.208........... ....... g5
Thynne v. Thynne [1952] P.27?....... .........47
Travers v. Holley [1953]P.246....... ....... 1gl
26.............
Tshireletso v. Tshireletso [1983] B.L.R. ..... gz
Tumagole v. Tumagole, MC No. F97l1987 (7 July 19gg), unreported .......... 106
(W)
Turk v. Turk 1954 (3) S.A. 971 ........ 105

Van Deijl v. Van Deijl 1966 (4) S.A. 260 (R) ............132
Van der Westhuizen v. Engelbrecht 1942 O.p.D. 191............ ...... 10
Van Lutterveld v. Engels 1959 (2) S.A. 699 (A)............ ................76
Van Niekerk v. Van Niekerk 1959 (4) S.A. 658 (G.W.) .............. 113
Van Rooyen v. Werner (1892) g S.C. 425 ........... ......I37
Venter v. Die Meester I97I t4) S.A. 482 (T)............. "................. 141
Venter v. Venter 1949 (4) S.A. 123 (V/)........... ......... 113
Venter's Executor v. Lombard 1919 T.p.D.177 ......... ................... 6
Vermaak v. Vermaak 1929 O.P.D. 13 ........... .............12
Verona v. Verona [1983] B.L.R. 114............ .............132
Viviers v. Kilian 1927 A.D.44g ........... .....73
 XXIU

Statutes

Abolition of Marital Power Act 2004 24,29,30, 32

Adoptionof Children Act1952... ...""...... 138
Affiliation Proceedings (Amendment) Act 1999:........' ..'........'...' 145
Affiliation Proceedings Act 1970 ..-.........' 145
Customary Law Act Cap 16:01 '."'......'..... 44
Customary Marriage and Divorce (Registration) Law 1985 (Ghana) '.......'... a3
Deeds Registry (Amenclment) Act 1996......... ............ 31
Dissolution of Marriages of Persons Subject to Customary Law (Disposal of
Property) Act 1926... .-...'..'... 26
Evidence in Civil Proceedings Act Cap.10:02...'.... .........".......'.. 19
Marriage (Amendment) Act 1977 .......... ......'......"....'- 13
Marriage Act 1949 (England) ...........'......' 18
Marriage Act 1983 (England) ......'..'.'......' 19
Marriage Act 1994 (England) .....'...'."...... 19
Marriage Act 2000
Marriage Ordinance Cap 127 (Ghana).... ..."'."'.......'..46
Married Persons Property Act 1970 .....26, 49
Matrimonial Causes Act 1950 (Englanel) ............."'..'.. 6?
Matrimonial Causes Act 1973 passim
Matrimonial Causes Act7913 (England) ..................... 69
Matrimonial Proceedings (Polygamous Marriages) Act 1972 (England).'.....46
Mental Disorders Act 1971 ....... 13, 110,147
Nullity of Marriage Act 1971 106, 117
Penal Code Cap 08:01 ..'...........72
 CHAPTER ONE

ENGAGEMENT
An engagement is an agreement
between a man and a woman by
agree to marry each other
at some future time. partieslo which they
un intended marriage
i,Jff
Iaw has *o'p,o"i
1
i: Ti3"1i,i"J.1$'Jf:tem
i9 r",',r,,
en t (ar s o re re'e a,"
"l'
uo,ffi ; i t.
* be drawn "",,-lq""ff"3':rT:ir."*:ffi
b;;;;;';rrtomary ff:Tt:l:$f ;
,{;l;r:",:j:' raw principres and those
of the

1. 1 Engagement under customary

law

raw has. been exrensivery

,i::#::f;Tn:r::;:ffitdyer,customary
be made rr.i-. only a brief ou.tui.* riit
a" engagement is not:onsequently,
ma'iage. rr ir' ro.
"o**o.n "r*",ir,,,ilJ::t:::t
good'..uoni-1i[;;; f,ffilTt#1,&rt:f,::l
;1',f-.fr:,r:l*' ;.li;:"].uonor rake prace

An engagernent is an agreement
between a woman and
hand' and a man and rrlr her famiry on the one
her in marriage ro rhe *un
r"*irv;;"il
orher, ny *rri"i iiry pro*ise
a spouse and to pay the
*t o,
,bogadi,.a hl ;;;;,
ro, give
family, agrees ro take her
::rl ffrrlgrl_*ent as
necessary
presence of orher members is made in the
of the ,,""?*iri;, ,i, .T*,,"esses. such an ;il;
ffi"'i,XT:"'iff1:l ;,'ffiX'::HH:r; il#;H
ln,t,c uy. tr,, t*"

r s* aLaw
irpri'|",?ff ;:,:. {:: '
l\\.c'f
a n an d c u s t o mL rr Ve ri a g/rh e Bo rs wa n a so ci e ry,

t 04_t 06. r .r.s - r

- Scc Robcrts -r
7, r ss. * t
":zni ;;;, ;;;:;ii, ru,_r,uand 2e8_30 1.
', "r- OO.rr"r""f)j;
op. cit. at p. 27.
r,iJ:::JTJ'::::"nqJl'l,jh11nyne'tvpaid in respecr orthe marriage
by the husbancr or his
lF.H:'il;i::?,",#,i;**iltHT,ill
@rr*til'*i';,'l,ll#'ff
'Sce
Schapera
op. pp. cit. ar 130_132.
 2

1.1.1 Essential requirements of an engagement under customary

raw
The requirements of an engagement are similar to rhose of
a marriage as more
often than not an engagement culminates into a marriage. According
to
Roberts,. the following are the essential requirements of
a cuslomary
engagement:

1.1.2 Capacity
The parties must have capacity to marry and capacitv to
marry each other.
Today, neither males nor females may be bitrothed until
they are of
marriageable age-7 Traditionally, females could be betrothed
while very
young and even unborn, but infant betrothal is no longer
practised.

1.f J Formalities

Representatives .f the man's descent group must request

the woman in
betrothal from representatives of her desient group and
thi, ,.qu.*t must be
accepted. Negotiations in contemplation of' betrothal ur.
commonly
concluded with the presentation of g1fts, the acceptance
of which by the
woman's group is treated as evidenci of- betrothal.b
However, despite the
evidentiary importance of the practice, this presentation
is not an essential
requirement.

1.1".4 consequences of an €ngagement under customary raw

The conclusion of the engagement binds the parties

to become man and wife
at some future date to be agreed between their guardians.
The man assumes
certain well defined responsibilities such as, pioviding
rhe bride.s weddins
ourfit and rhose of the girls who will attend to lh, bride
at th. ;;ili;.r il:
engagement may limit the sexual liberty of the woman
in so far as shJcan no
longer have sexual relations with other men without putting
her engagement in
danger. The ma'is under obligation to pa-v the agreed ,hrgadi,
within a
stipulated period.

'-Op. cit at p.27.

' This age is generalll' determined b1' Ihe attainmeni
of puberiy bur ir must bc nolsd that under
section 14 o1'the Marriage Acr 2000, the regar age for marriage
t For uxample, among is fixeJ a1 1g years.
the Kgatia, it i, ,uia tt,it tire preseniation of maisiwa
is regardcd as
evidence ofconclusion ofbetrothal. See Roberts op.
e cit. at p.2g.
See Roberts op. cit. at p.29.
 1.1.5 Termination of an engagement under customary law
The engagement may be terminated by the marriage of the parties, by
death of
either party or try the act of the parties. In the latter circumstance, this
may
give rise to compensation to one of the parties if the act of the other amounts
to an unlawful act. There is however, some uncertainty as to whether an
action for breach of n1q;niry ro marry is maintainable undei customary
law. In
Sekonopelo v. Keetilet" the court held that there is no such action
under
Tswana customary law. In Mpkoyakgosi v. Jakoba rr the court refrained
from
commenting on the view expressed in Sekonopelo v. Keetile as the issue
was
not germane to the determination of the matter before the court.
Roberts cites
a case heard in the chiefs court at Mclchudi where compensation was
awarded io a woman when a protracted engagement was terminated
because
of the man's fault.l2 The compensation was awarded for..wasting her
time for
marriage". Similar compensations are recorded as having been awarded
under
Tlokwa and Ngwato customary laws.'3 In view of Ihese instances, it
is
submitted that an action for breach of promise to marry is maintainable
under
customary law.

1.2 Engagement under common law

I{istorically, the engagement agreement (called .sponsalia') was known

to the
Romans but was considered as an informa,l agreement. No
consequences were
therefore attached to such an agreement.la The Germans
also knew about the
engagement agreement, which was considered as a contract
between the
families of the bride and that of the groom. Gifts were exchangetl
between the
two families. Thus the _engagement under Germanic law wai similar
to that
under customary law.''' canon law also attached consequences
engagement the most important of which was the acknowledgement
to an
that it
was a binding contract which fell within the jurisdiction of
the church. The
Roman-Dutch law of marriage recognised engagement as
a regaly binding
agreement which, if unlawfully broken, could be enforced
or an action could

'u 1tlss1H.c.T.R.88.
" [19e71 B.l..R. 604 ar p. 610.
'' see selrs/rlro v. Moremi c-u:? 76rrg66(unrep.rred) cired at p.29 ofhis book.
It Io.
See Roberts op. cir ar pp. 105.270.
'" See D'S'P' Cronj6 antj J. Heaton South African Familylcp
Butterworths, Durban 1999 at
n1
''' See J, D. Sinclair assisted by J. Heaton The Law of Marriage Vol. I Juta" Kenwyn 1996 at
pp. 18-5-186.
 4

bebraughtforrccoveryofdamages.ThusonthereceptirlnoftheRoman.
DutchlawintoBotswana,BotswanacolTtmonlawembracedengagementaSan
agfeement with legal consequences'
as an
agreement, under common larv may be defined
The engagement each oiher in future' be
it on
between i *un and a rvomJ;;;;ttt ttr
agreement agreement does not have
date onJtnin u ,.u.onabie time. The
a specific or orally' However'
it can:t,t^J'oed in \\riting
comply with any''"'*tiitit appl,v' Thus' factors such
the usual rules governing the tor*ution'li.onrrurt The
uno ou"'J may vitiat' inl t"nonement'16
as mistake, *i"tp'-t"nioion tJtit an evidential
of an engagemenr ring is nor r ;;"'tt;ent but onty
giving
has been reached'
purpose that an agieement

1.2.1 Essential requirement of

an engagement agreement under
common law

Thefollowingrequiremenlsmustbeccmpliedwithinordertobringabouta
valid engagementt't

(i)Thepartiesmustnotbewithintheprohibiteddegreesofconsanguinityand
atfinitY.

(ii)Neitherofthepartiesmustbemarriedtosomeoneelse'Amarriedperson-
attaches to it a condition
not theretore tontracr un .ngugr;rot even if he
may will be considered
rhat he will ger .-;;;;.
from his6;;1. such a contfact
as cofirs more: and therefore void'
bonos

(iii)Aminormustobtaintheconsentofhisparentsorguardianbefore
*iich tlre,rui,i puttnts or guardian may
entering inro the agreement. .ruirinf
has been concluded'
after it
ratify the
""gogt*3nt
one PartY
consensus in the sense that
{iv) The parties must have reached
b'v the other'
:;l;^;;'ori.t' which is accepted

',::::'*"-,*f il1.,;P;X""'iiiTi,I;i,'{.-2r:;i'i'?il.f
}:it:;!Y"o Jr.rla, CaPe

"['own. 198-5 PP' 45-6i

 5

1.2.2 Termination of the engagement under common law

The engagement is terminated in any of the following ways:

(i) By the death of one of the parties.

{ii) When the parties get rnarried

(iii) Where one of the parties terminates the agreement on justifiable grounds.

(iv) where the parties mutually agree to terminate the agreement.

(v) In the case of a minor where the parents or guardian withdraws their
consent, which was given for the engagement.

(vi) By breach of the agreement. This can occur in a variety of ways. For
example, where one party makes it impossible fbr the other to continue with
the engagement by marrying someone else.

r,2.3 llamages for breach of the engagement under common lawrB

Generally, in the event of a breach of the agreement, the innocent party is

entitled to claim damages to put him in a position in which he wouid have
been had the contract not been breached. He can claim, inter alic, for
expenses already incurred with a view to the marriagele and reparation by way
of actirt iniuriarttm. This action is normally for reparation for bruised feetings
resulting from the trreaking up ot, the engagement. However, in ShirtJy
Morewane v. Lesega Motlhatlhedl:20 Cordurr i. neta drat today's tbmale has
more social advantages than her counterpart of years gone by and that being
'jilted' in the context of modem living does not. without more, carry any
particular stigma. This notwithstanding, he ruled that in the particular-
circumstances of the case where a man had induced a woman to become
pregnant by promising marriage and then reneged from his promise by taking
up with another woman a short while before the wedding was due to taki
place, such behaviour was contumelious in the extreme. consequently, he

'n See generally F.P. van den Heever Breoch o! Promise anc! Seeluction in South African Law,
Juta, Cape Town, 1954.
'u See the South Afiican case of Cuggenkeim v. Rosenbaum 196l (4) S.A.
t"
Ciuil Trial No, 35211983 (J5 Marii 1984) unreporleci.
 6

awardecl the plaintitf P2, 000 damages

for "impairment of her personal dignity
and reputation"-21

1.2.4 Return of Engagement gifts

engaged^persons into t'hree categories'
Hahlo2l has classified gifts between
piedge of the {o1o1's promise to n'}arfy
The iirst category is gifrs made as a
are*to be forfeited to the donee if
the
the donee with the inlention that they
of this type of gift is the engagement
donor breaks r,is pro*is*. An example
ring.

Thesecondcategoryisgiftsinanticipationofmarriage'Theseareintendedto
during the marriage' Examples of
provide the donee *itf, !o** lasting tenelit
jewellert' fnt permanent gift of value
this type of gifis are a house , a car or
to have been made in anticipation of
given durilg the engagement is presumed
marrrage'

Thethir<lcategoryconsistsofout-and-outgifisofsmallvalue,ofthekind
couples'
custc,marity exihanged between engaged

Hahlohassuggestedthatallgifts,otherthanout-and.outgiftsofsmallY:l:*'
have to be returned if the
which have been consumedl alienated or lost,
engagementisterminatedbymutualconsent.Thepositionisihesameifthe
engagement is terminated Ly reason
not imputabie as fault to o-i'e of the
pariies becoming insane or lhat the
parties. t or exarnfi., in "ur*-of one of the
oarties have behaved in such a way ihat is
i; unlikely that the marriage will
*ork.t*

Furthermore,iftheengagementisbrokenoffbyoneoftheparties,the
except out-and-out gifts
by him/her,
innocent party may recover all gifts made
alienaxed or lcrst, but may
of negligible value which have been consumed,
setting off thsir value against
retain all gifts made to him/her by the defaulter,
his/her damages'

2' This was the allegation made in the plaintiff s Declaration'

2'
op. cit. at P' 61 . T'P'D 1?? at pP. lB2-
2:t
See the South African case of
Yenler's Executor v' Lombard 1919
183.
:r See the south African case of Srey rt v ' Srnith 1972 tZ) S'A' 656 (RA)'
 4
I

to
inln*o' tftut the donor wishes the donee
.:::eengagementisterminatedbythedeathofaparty,thegifishavetobe
:..::ned in the -b;;-';unf ihe donor's death'
i'.;t'.;;;';iitt i" tit to"nt of
S:,luldtheactiontorlrreachofpromiseofnarriagebeabolished?lnEngland
-l"ri-itto oit th* that it gives
, -: example, the
il;; ;; O*-tl' 'Slound"the stabiiitv of
::Dcnuniry ro, crualr*-*f
;;gord-digg;;:';*"r1', iia,lhat rights
ul.i*ty rh;;;" iaw should not countenance
:rariages l, ,o i*poriuiito people into marriages
which they
-,r action" the threat of which ryv*q;
"::'inougtr it can be agued that the abolition
.,+ui,,l nor othcr\\rr. ,"o.ri"i.'
t;-[;sou for its abolition in Botswana'
,:i ihe aclion in other jurisdiction- :- Jepp*ul to the awarcl of damages for
the Court
:he attitude exhibiteri by this action being
,,1ulrer,v in Aoti"-r.'''ioinr*tt,f,otr'it"llt"tittouA^of spouse
in thsluture. whiisr ,*"oe*i,ini ,h., lqh::l.an aggrieved court rn
;iscouraged
for harm ul?ft*tiund inlury sustained' the
damages
attions as they are often
:r_r claim delictual
a
p;;;i'i;-"
to oi'"Ju'ug" *ttt up of the
ihat case urged ti" attritrutaUte to a break
Oirr-r"*r, caused ny i-f"
:et-lecdon of the I'r1 Morewane's case' the
nrarriage. F"';;;;;'' *' i*Jl"u'"d;;t;;-f
a pr;;; u*ing jilted
has waned c'nsiderably'
stigma hirherto *r*"iur"d wirh relationships outside
Coupled with ti.-pr;f,firation coniinuous
";";;;;-.''i'u*ily'
existence of lhe action
for the
that th"
marriage, it is submitted to ascertain its utility
n**au'ro'i."t*-**t*ln*d
breach ot pro*i*J;;;;t*.
of things'
in the contemporary scheme

Com'
of Promise of Maniage'Law
Lan iom*iurion on'ilreach
See RePort of the English
r5 Act 1970'
(misccllaneous Provisions)
:,, t
tJOgi
f Para'17' Se e also s' 1 l-aw Rclbrm
r, I ts.1..R. -186.
1r9U9;
 CHAPTER TWO

THE NATURtr OF MARRIAGE UNDER THE MARRIAGE ACT

The Marriage Act 2aa0t.7 , which govems the celebration of civil as

opposed to
:y:tgqury_marriages, is a re-enactment of the Marriage proclamition of
1917.-" The provisions of the proclamation were infi-uenced by English
concepts of marriage with a heavy religious undertone.2, These influences
have been maintained under the 2000 Act, although certain minor repeals
-"tu.ric have
been made3O and some innovations intioduceJij' a definition of
marriage under the Act can be gleaned from the English case of Hyde v. Hycte
antl Womansec32 where Lord penzance said$:

"l conceive that marriage as understood in Christendom may...be defined

as the voluntan
union lbr life of one man and one wonan to the exclusion of all others.',

This definition gives just the barest outline of the institution of marriage and is
now regarded as rather misleading. For example, while statutory mariage is
still regarded as a voluntary union of one man and on. ,oroun.o to" th.
exciusion of all others it is no longer "for lifb" as envisaged in the definition

"
r8
The Acr came into ell'ect on the 28tr'of December 2001.
Proclamalion No. 1 of lglTpromulgafed;;il* ii'; iunurry 1917 and
came inro f.rce ..r
thc I'r ril'April l9l 7.
-,' Sce O.R. Mc(irc.gor
Divorce in Englanrl. Heineman, Chap. 1
"' Firr cxample, the special provision that
existed under s. 9 of the 1917
publication oI banns whcn the inten<led nrarriage was between British
Act regardi:g
subjects, on. of"r*,r,,,*
was re siding in thc Unitcd Kingclom has treen repealed.
" Provisit.rn has now been madc untler Parl II ofthe 2000 Act
tbr the otrligatory registra:i;: - -
rl'. u sl i rn, Hind u and orher religious marriages.
f'- ".:,:li I I P & D.
(lir66) L.R. t-10.
'' At p' l -3-1. Scc alstr the south Afiican cases af Seedat's
Executors v. T'he Master l 9 i - {
302 at p- 309 /rc'Innes c.J anrl Isruail v. Ismail lgs3 (l) s.A. 1006 -
(A) ar p. rr,ir: _t*
Trcngove J.A.
Even in lhis regarcl advancemen{ in medical technology is making
." it incrcasingll.:,:,, :, -
biological rnales to transfbrm thenrselves into 'females' (iiie so-callei..sex
change" ope
-i,.r-f
thusblurrlngthedisrjnctjottbetweenthetwrsscxcsan<Jpr:singproblemsftrrthedefinitii,:.-
tnariage as well as its fbrmation. see E.K.
Quansah "advancJment in medical science: !\ r-..:
answers have Nigerial of marriage and divorce?,, uggg-ga) iig"rin,r.raridicar Rev1e:;
Jaw
124. s' Poul,er "Definition of marriage in English Law-'(|979) iz rtoauro Law, Rexiew 409.
thc English casc or corbett v. corbe* yor.si. a.shtey)
African case of w v w.1976..(2) s.A. 308 1iszol z eir e.n. 33 and the sourh
{w). For an appraisal of rhe traditional definition
of marriagc in the conlext.ol conslitutionai grurantee rights,
see the south African case of
Forrie snd Anrrher v-'r'he Mini.ster of Homeigoi^
zooitsj's.a. :or tccl.
 9

htcause today many marriages do end in divorce.35 This observation

ncrn-irhstanding, the definition highlights some of the characteristics of this
:rpe of marriage. Such a marriage must be voluntary in the sense of both
:.1rties freely consenting to enler into it; it must be between a biological male
and a biological female and it is monogamous, as the parties are not permitted
Ito :c contract another marriage with someone else during the subsistence of the
of marriage. It has treen asserted however, that from the legal point of view it is
ish :tnnecessafy to formulate a comprehensive definition of marriagc.''o The
3es niason being that marriage has different characteristics and facets and can be
tYe studied from different perspectives, tbr example, from a social, psychological,
of religious, philosophical or legal perspective. We are here concerned with the
'de srud,v of marriage from the legal perspective and in this regard the law regards
onlv certain characteristics of marriage as relevant because it concerns itself
,,i ith the external conduct of the parties involved in the ceremony'
2n

2.1 LEGAL REQUIRBMENTS FOR THE CONCLUSION OF A

I(
\.ALID MARRIAGE
is
he
The law specifies certain requirements, which must be complied with in order
on
for a valid marriage to come into being. These are as follows:

2.1.1 Parental consent

cn
Section 15 of the Marriage Act provides that no minor or person under the age
t-.l21years who is not a widower or widow may marry without the consent in
no * riting of his or her parents cr guardians. Such minor or person in terms of s.
1-t of the Act must have attained the minimum age of 18 years. Section 15
ol envisages ihe consent of both parents but the proviso to the section has set out,
inrcr alia, what should happen in the event of the parents failing to reach an
agreement with regard to the mincr's marriage. The said proviso states:
D.
er by one parent but refused by the other parent,
ir ) rvhere such consent is given
'.he minor may apply to a magistrates' court, in the administrative
district in
or
n) *-hich such a minor resides, or the High Court, for consent to the rnarriage and
cf
4,t.
() '' A perusal cl the Divorce Register at the tligh Court in krbatsc on 8 March 2004 shows that
rh
ri tli'een 1997 and 2001 1806 divorce cases were registered of which I 246 have been disposed
]n -i

rf ' See P.J. Visser & j.M. Potgieler lntrod.uction to Family I'aw2"d ed', JLrta & Co., Kenwyn
ivvs ai p. 3.
 10

such minor shall not, for purposes of such application, require the legal
assistance of his or her legal guardian.
(ii) where a minor is born out of wedlock the consent of the mother or other
lawful guardian only shall be required, or
(iii) where the minor has no parents or guardian, an administrative officer in
the district in which such minor resides may give an order in writing
authorising the marriage of such a minor, and
(iv) where consent cannot be obtained from the parents or guardian of a minor
for reasons other than their unwillingness to give the same or when such
consent is manifestly unreasonably withheld, an administrative officer in the
district in which such minor resides or if the minor is resident outside
Botswana, an administrative officer in the district in which the parents or
guardian reside, may give an order in writing authorising the marriage of such
a minor.

The above provisions seek to protect the minor from taking an important step
such as entering into marriage without being fully appraised of the implication
of the transaction.

2,L,2 Effect of a minor's marriage without pnrental consent

The Marriage Act does not stipulatc the consequences of a minor marrying in
-would
disregard of the provisions of s. 15. The common law position
therefore seem to be applicable. Under the common law, there is no
unanirnity as to the possible consequences of a minor's mariage without
parental consent. Two views have emerged, namely, (l) that a minor's
marriage withoul parental consent is voidable at the instance of the parents'17
and (2) that such a marriage is void.38 rhere was a lot of academic and
judicial support for each point of view in Seruth Africa but the balance of the
support favoured the view lhat such a marriage was voiclable.ro This view was
statutory confirmed by s. 34 of the Matrimonial property Act 19g4 which
seclion inserted a new s.24A into ti:re Mar:riage Act l96l making a minor's
marriage without parental consent voi.dable. ln the light of pre-19g4 and post-
1984 situations in Sauth Africa, it is submitfed that marriage in disregaid of

3?
See .1" Voel Comme,xtarius ad Pcndectos (J" Verbessel, L. Batavorum) 1695-170 4 23.2.]1,
and 24.2.1-5, The South Aliican casos of wilrenhu-g v. willenburg
i1s09) 3 Buch A.c. 409,
Romans v" Ranruns 1950 (4) s"A.7z'l (E) and Ex parte van Logger:enberg lgsl (l) S.A. 77I.
r8
See ihe South Aliican cases al Ysn d.er Wesihuizen ,. en{inreclzt lg42 o.p.D^ 191 and
Pretrrius v. Pretarius 1948 (4) S.A. 144 (O).
3'r
See H.R. Hahl*t Tke south Art'icatt Law of Husband and wif€ s'n ed. Juta & co., cape Town
1985 at p. 94.
 10 11

iegal :t* lrovisions of s. 15 of the Botswana's Marriage Act should be regarded as

.,.-'''idable. This position seem$ to have been adopted by the High Court in
other Sesurnetsi Tttmcgole v. Johnson Tumagole.a0 In that case the plaintiff married
':: detlndant without her parents' consent when she was not yet 20 years old
er in -- disregard of the provisions of the then s. 17 of the Marriage Act 1917. The
iting :,ainriff did not live with the defendant who disappeared in the very month in
l.,"hi.h the marriage took place. Subsequently, the plaintiff s parents took such
iinor q:-ls. as they believed they couicl, to have the marriage set aside but without
marriage
such
="...rs. The question which the court had to answer was whether a a nullity?
rthe J,,rniiacted by a rninor without parental consent could be set aside as
tside \trtr admitting that the case law in South Africa was unsettled, Coldblatt Ag'
is or l. likened the marriage contracl to that of a commercial contractal and opined
such :hat ar the very least it must comply with the requirements of a valid contract.
:l: submitted that in relation to a minor's contract, the mincr was entitled on
,lliainment of majority to either ratify the contract or avoid it. He held that in
step ,he instant case there was clearly no ratification by the plaintiff who right trom
rtion the outset of the marriage treated the marriage as a nullity. In the
circumstances, he concluded that he saw no IeaSOn why a minor, who not
har-ing ratified the marriage contract, should be bound by it. Consequently, he
held ihat the marriage between the plaintiff and the defendant was voidable
and was avcided by the plaintiff.
rg In
-ruld A relatecl question, which may be posed at this juncture, is whether a minor
no rr,ho rnarries withciut parental consent has the loas standl to bring an action to
:tout annul the marriage. Academic opinion in South Africa suggests that such a
ors minor has the requisite standing to bring nullity proceedings to set aside the
i7
tt5 marriage. The rationale for this suggestion is that if it is accepted that parents'
and right to annul the marriage during their child's minority is exercised in their
the capacity as guardians, and not by virtue of any personal interest, then the
l\;as erstwhile minor should be entitled to exercise the same right on the attainment
rich of his majority or within a reasonable time thereafter.at As shown by the
ors
ost-
iof
-" Mc l.Jo.
{Y) 97187 (7 July l9B8) unreported.
-: Strictly speaking, a marriage is not a contract although like a contracl it creates ohligalions.
-i,J9. However, unlike a contract its primary otrjeclive is nitl ttt creale obligations but [o crcalc a
-1.
sralr:s of a public na{ure. See the South African case of Hol land v . Hollantl 1973 (l ) S'A. 897
and (T) at p. 899 per lloshoffJ.
-r See P.Q.R. Boberg The Law of Persons and the Fumilv Jula & Co, Cape Town i977 at pp.
LllVn r,,:+-si,i and Il. Van lleerden et al {erls.) Boberg's Lav, of f'ersons antl the Fanil,i'. Jula &
Cr.. Kenw]'n i99 at pp. 841 843,
 12

decision in Segametsi Ttmagole v. Johnson Tumagole,a3 the same conclusion

has been reached in Botswana.

2.2 Capacity to marry

A party's capacity to marry,has two aspects, namely, (a) his or her capacity as
an individual to marry and (b) his or her capacity to marry the other party to
the intended marriage.

2.2.1 Individual capacity to marry

The following reasons may render a person incapable of marrying.

2.2.2 Lack of age

Section 14 of the Marriage Act pro'vides that no person under the age of 18
ycars may marry. This is the minimum age at which a person acquires the
capacity, albeit a limited one, to marry. Such a person being a minor is still
required by s. 15 of the Act to obtain parental consent to the marriage. If the
person is below the age of 18 years and marries with the consent of his or her
parents, ttre marriage will be void as the minimum age must be attained before
the requisite consent can tre said to be effective to render the marriage valid.

2.2.3 Persons who are insane

Section 14 also provides that no insane person who is incapable of giving

consenl to a marriage may marry. Insanity for the purpose of marriage is a
question of fact to be determined by evidence. The common law determines
the legal capacity of such personsot and it has been held in South Africa that
such a person lacks capacity to marry, not only when he does not understand
and appreciate the nature and consequences of the transaction into which he or
she puiports to enter,4t but also when he or she is prompted to enter into the
traniactir:n as a consequence of hallucinations caused by insanity.46 The

a3
cit. supra.
{.)1t.
'o Their receplion, delention, treatmenl and prr:tection however, are dealt with under lhe
Menhl Disorders Act 'l971.
a5
See l'lrecs ant v. Warne 1922 A.D. 481 at p. 4BB per Innes C.J. and Lange v ' Lange L945
A.D.332 aIp.342per TindaliJ.A. See a\seVermeakv.Vermaak 1929O.P.D. 13andUysv"
{/ys 19,53 (2) S.A. 1(E). See also the English case of Re Park's Estate [1954,| P" 89. C/the
criminai lest for insanity as provided fr-ir in s. 11 of the Penal Code'
tn
See lax.qc v. I.ange op. r:it. where a marriage was dissoived because evidence was adduced
 13

Sourh African case law will serve as persuasive precedent in interpreting s. 14.
-\ person who is detained in a mental institution as a result of a reception ordpr
i-<sued under s. 9 of the Mental Disorders Act 1971 does not necessarily lack
rhe capacity to marry. If it can be proved that the marriage was contracted
,Curing a lucidum intervallum (lucid interval when he or she was able to
comprehend the nature and consequences. of the marriage transaction), the
resuitant marriage will be considered valid.aT

).2.4 Persons who are already married

Section 13 (1) of the Marriage Act provides that no pefson who has previously
coniracted a marriage under the Act with a person still living may contract a
marriage under the Act or in accordance with any Customary, Muslim, Hindu
Lrr other religious rites unless the previous marriage has been dissolved or
annulled by a court of competent jurisdiction. A person in such a situation is
:iierefore denied the capaciiy to marry. However, a proviso to the subsection
:ermits such a person to contract a marriage in accordance with any
Customary, Muslim, Hindu or other religious rites with the person with whom
:he previous marriage was contracted. Similarly, by s. 13 (2) of the Act, a
Derson who has previously contraited a marriage in accordance with any
-ustomary, Muslim, Hindu or other religious rites with a person still living is
'the
nor permitted to Contract a marriage under Act unless the previous
,nu.riug. has been dissolved or annulled in accordance with the applicable
larv. Again such a person is denied capacity to contract a marriage under the
-{ct but the proviso to the subsection allows such a person to contract a
marriage under the Act with the person with whom the previous marriage was
conrracted. The implications of these provisions will be discussed in Chapter
Fgur. It suffices to say at this point that a person already married under the
.{ct lacks the capacity to cr:ntract another marriage either in accordance with
anv Customary, Muslim, Hindu or other religious rites, or under the Act with
anr, other person during the subsistence of the marriage under the Act.

The prohibition from marrying under the Act whilst already rnarried in
accordance with any Customary law was introduced by the Marriage
{Amendmenf) Act L977 and extended to marriages in accordance with

i.. shorv that al lho time of the marriage, the husband was suft'ering fiom demenlia praecox
and rhis has caused him to experienced halluc,inations that disemlrodied voices audible to him
,rionc pcrsuacieel him tri enter into thc marriage.
- See the South African casc of Prinsloo's Curatrsr Bonis v. CraJfrsrcl unr! Prinsltsr; 19tl--< T.S.
i59 at p. 612 per Solomon J.
 14

Muslim, Hindu
.lnd cfer rerigicus rites in 200{r. Thus, in srare v.
,Kgwediathuhufs it was heler that Th*r" *u, nothing in the
marriage contracted by a person under
law to invalidate a
contracted a previous- marriage either "urro*urf
l**^"u.n though he had
under the Marriage proclamation or
under customary law during the lifetime
of the spouse or ti," earlier rnarriage.
The accused had been mairied under the
Marriage proclamation to his first
wife and later went through a customary marriage
with another woman whilst
his first marriage was srili in existence.
He was charged and convicted of the
offeSce of trigamy. on review of the
case, Aguda C.J. quashed the c<xviction
on the ground that in terms of s. 2 of the-ptJ.r.*xi"n]
which gave staturory
validity to cusromary marriages irrespective
of wheth* *r.y roiri* ,, *.i**;
under the Proclamation or ai'ther customary
mamiage, the accused,s second
marriage was nor voic. within ihe provisiorx
under which he was"^chargecr. Sirnilarry,
of ,.idrn;;il";;i?#
in Lydia (iasemokwena v. Burne
Molatlhiwa & Anor-s0 the appricanr was
married to c. lthe aerr*ir"""0",
the Marriage procramarion in t1g74. prio,
io *rir;;;; ro rhe applicanr, rhe
deceased had contra:led. a customary
marriage with the mother of the first
respondent in 1946' sath marriug.o
**r. undissolved at the time of his death
in 1999. In proceedings at u .,ito*ury court
presided over by the second
respondent, fhe first respondent was
awirded buiiat ,rgt ts over the deceased.
The cusromary court heid fu.ther
thar the apprirunr;s ;?;;jrg- ro rhe
was void in rerms of s. 15 deceased
{z) of the Marriag* proctu*uiion qno* s. 13 (2)
the Marriage Act zi)00). of
xniboteto J. herd thlt the 197a inrriage was valid as
the prohibirion to *u1.{ any other person
intrcduced in 1977 and ihe am*ndmeirt
in terms of s. 15 (2) was only
was not retrospective. In view of
1977 amtndment, now reflected in s. 13 the
contravention of s. 13 wirr render
of the i\rlarriage Act 2000" a
the second *urriug* ,.o;F, ;;
violalor to a possibre prosecuti*n for
bigamy under the penar code.
*lTrl;l
2,3 Capacity to marry each other

section 16 of the Marriage Act stipulates

certain relationships the existence
which between the two persons inten<iing of
rnarrying' These rerationshipl *uy ne ny * **r.y'i"e"pacitut"s them from
Relationship by consanguinity is basecr "onionguiiiry
or by affinity.
on riescent frJm a common ancestor
and is divided into two sub-dioisions,
namery, (1) rerationship in the direct

";roz31 B.L.R. 77
'" Crrrrcntly s. l7J ol thc penal
-" Coclc.
'' Ieeel B.L.R.26.
2
Se c Mrzii'o nka v. Miziyonke {19g212 B.L.R. 396.
 1i 15
1+

..::.rhai is. between persons one of whom is descended from the other, for
:ea .r;rnple. father and son, grandfather and grandson. These are referred to as
and (2) relationship in the ccllateral line, that is,
rad =scendants ancl clescendants
OT ]3.sons who share a common ancestor without one being descended from the
crP
:"
;;.;.;"t;;u*ft., brother and sister, uncle and aunt and nephew nisse'i'. '
'nd
lrst
ilst Relationship by affinity exists between one spouse and the blood relations of
ihe :he other *pou,rr, for exarnple, a spouse and his or her father-in-iaw. The
ion ::lationship however excludes that between the relative$ of one spouse and the
lr) il'laiives ol the other sPouse,
lge lor example. one spouse's sister and the other spcuse's brother.
rnd
The nearness of the various relationships within consanguinity and affinity
is
rde
measured in 'degrees'. Each step of ascent or descent between the persons in
ttte
'I'hus one can say that Masala is related
ier question is refeied to as a'degree'.
;he io Modimo in the third degree by consanguinity or in the second degree by
ist "ffinity.
rth
Section 16 prohibils intermarriages of perscns who are related within
the
nd
:d. tollowing de grees of relationships:
ed {i) in the direct ascending or descending line in any degree, as, for examPle,
of parenland child, parent and grandchild;
one being
AS ili; in the collateial line by Uring children of the same person or by
tt,v a child and another a grandchild or more remote descendant of the same
he person, tor example, brother ancl sister, uncle and niece or grandniece;
iiil; uy affinity as specifieet in (i) anrl (ii) above,
to
that is, when lhe former
the other party as therein
he f.urUond or wiie of one of the parties was related
specified:
Provided that a woman whose husband has died may mary her late husband's
brother. and a man whose wife has died may many his late wife's sister' It
shall however neither be lawful for a woman to marry the brother of her
of divorced husband cluring the lifetime of such husband nor fcr a man to marry
m the sister r:f his divorceri wife during the lifetime of such wife.
].
U1 Conlravention of the provisions of sectitln 16 renders the marriage void'
LT

I
 16

2.4 Persons of the same sex

The traditional acceptance of marriage as being

between a man and a woman
necessarily excludes persors of the iame biolo-gical
sex from marrirg. thi;
situati'n is increasingly being challenged [y
advancement in
tecirn'logy whereby a person born biologicaily mare .un ,"hunge, medical
his ,." *
that of a 'female'- Furthermore, there iJnowaoay,
un in..*using acceptance
of permanent same-sex relationships as equal to relationships
between men
and women''52 The possibility theiefore exists whereby
persons intending to
marry are either not a man or a woman properly
so-"ad*a because ,t
both biologically male although one of thcrn t u. un "y-ur.
upp.urun". of a woman or
ther are biologically male or fbmale. In the tbrmer
thll situation, it has been
held in Engtand and south Africa rhat such a marriage
is yet to be decided.upon by the courts in Botswrna.
is;;ffi;nrr'r".""j"
However, when the
tlppottunity arrives. the courts' attitude is likely
to be thai such marriages are
void under Botswana law.-ta

2.5 Publication of banns

section 3 of the Marriage Act 2000 provides that

no ma*iage shall be valid
.within a period of not more than three months previous to its
unless
solemnisation banns been published o, u ,p*"iui li""n.. has been
otrtained. In terms ^have + of the Act, the banns *uy u, pubrished for
?f I
successive weeks during three
divine service in a church or other building
habitually used for public-worship by a congregation
to which one or both of
the parties to the intende^d- marriage trelong
and in a district in which one or
both of such parties reside. Artrrnativerf, the
banns may te posted for a
period of three successive weeks in a conspicuous
place to which the public
have access at the office of an administrative
officer in the <listrict in which
one or both of the parties to the intendecr marriage
requirement as to the minimum period of time
,.rir:.. There is no
*r, frurti., should have been
52
see firr example, scclion 9 of the south Aliican
consritution which prr:hibits cliscrimination
on the grtrunds of sexuai orieniation. See also
the South African casJs of rar; onal coalitian
Jor cav and Lesbisn Equatity & ors. v Mint!:r. Hante ffiirs'& orr. ?000 (2) s.A. I
(CC) and Du Ples,sis v. R,ad Accicknt Ftmtl2{-i04 lf
(l)"S.A.:S!,i'Sili
t:t
Scc note b supru.
'- see Kanane v. The
stste [2aa3]2 B.L.R. 67 (CA) where rhe
courr ol Appcal held rhar the
time has not yet arrived to decriminalize homosexual
rclationships between consenting adults
in privale. For a commenury' on the case, see E.K. quansah ,,same-sex
relaticnships in
perspecrives and flulure prospects" (2004)
4 Africatr Human Righrs Law
7:-,t,:x:i;nfu*enr
to 17

n3mbers of the church concerned or should have resided in the particular

:islrict. If the rationale behind the publication of the banns is to publicise the
tn :nrenied marriage, then this loophole in the law will seriously undermine such
15
:ublicity. Nothing prevents a person whr: has just arrived in a district or has
a1
1:.rsr joine<l a chuich from approaching an administrative
officer or a priesl to
lo :.rbilsh banns of his intended marriage. He would not have been well known
:nough in the district or the church for an effective objection, if any, to be
ln :':dged against the intended marriage'
:o
:.5,1 Restrictions on the publication of banns
rn
The following restrictions are placed on the publication of the banns by s' 6
io
r i i ol the Act.
iir Where a party to the intencled marriage is a widow or widower with minor
ic
children of a former marriage, or have any children of a former marriage
under customary law, the banns will not be published unless such a persoh
produces a ceitificate signed by the Master of the High Court, by an
:cministrative officer or by a magistrate to the effect that he is s*tisfied that
:he inheritances or other properties which havc devolvcd upon such children
have been adequatelY secured.
iiii Where one of ihe parties to the intended marriage has been married
rrer,iously under customary law but the marriage has since been dissolved, a
certificate signed by an administrative officer or by a magistrate certifying that
aiJequate prJvision has been made for the maintenance of minor children
of
ihe iorme? marriage need to be produced before the banns can be published'
This restriction wlll only affect a man previously married'under customary
1a11- since he is the one who invariatrly on lhe dissolution 9f
lhe marriage has
tfr. ,*tpontiftility to maintain any chiltiren of the marriage'ss

Section 6 (2) of the Acl provides that where the person intending to marry is
resident outside Botswana, the certifiCates required un$er s. 6 (1) may be
-sisne d by a holder of an office
in the country of residence which is deemed by
:he lr.{ini.ster of Labour and Heime Affairs to be equivalent to that of a District
Commissioner in Botswana.

Robctls i)P cit aL p

 1B

2.5.2 Discovery of an impediment

The rationale behind the publication of the banns is to enable

the public ro notify
the officiating priest or the administrative officer of
any regar impeaiment in th*
way of the proposed marriage. What happens if such
an iirpediment is notified
to the priest or the administrative officer? The Act does not provide
a means
whereby verification of the impediment may be made. It
follows from this that if
cause is shown by a member of the public why the parties
should not be malied,
the parties have no avenue to challinge the propri"ty ,lt
ttre ctaim neither is the
priest nor the administrative officer under'an'obligation
to adjudicate in the
matter.56 However, the Act provides that any Marriage
officer who is in doubt
as to whether he is regalry entitled to soremnis* u *Jrriugj
or not may apply to
the Minister of Labour and Home Affairs for legal advice]57
Dispures;.rutlg to
an alleged impediment may be refened to the Minirt.,
under t*s provision"fo,.
.resolution.

If an impediment is proved to exist, the publication of the banns will be

discontinued and the marriage plans of the parties wilr
be aborted.

2.6 Speeial licence

where the parties want to avoid the procedure of publishing

banns they rnay
apply for a special licence to an administrative officer,
who being satisfied if
necessary by evidence under oath or by an affidavit
that there is no legal
impediment to the marriage, may gmnt a special licence
entitling the pa*ieJto
ma*y without the necessity of publishing ihe banns.5s The
speciar licence is
usually resorted to by persons who for some reasoil
do not want their marriage to
be publicised. In England for instance, a similar licence
is said to be orisinallv
meant "for the use of persons of noble and illustrious
qualitf".rd- lil, ,i"""orii
whether the same policy may be said to be behind
tie Botswana Act. The
provision may be utilised by ail and sundry and may
prove useful in cases of an
emergency, tbr instance! a person wanting to marry
on his deathbecl. In such a
situation the three weeks wait, which the publication
of the banns entails, will be
most inappropriate.

'n under ihe English Marriage Act 1949 s. 29, the Superintendent Registrar is empowered
decide such lo
matters.
57
Sec scction li (2) ol thc Act.
'n Sec section
5 ul the Act.
],..::- t.Y' cretney & J.M. Masson principres of Family L;rw sweel & Maxwel,
1997 aLp.24. l,r:ndon
 19
i8

2.7 SOLEMNISATTON OF THE MARRJAGE

.ifv
The solemnisation of the marriage may be done either by a civil ceremony or by
the
ied
, reiigious ceremony. By section 7 (1) of the Act no marriage shall be valid
ulesi solemnised by a Marriage Officer. Section 7 (2) makes the following
tnS
p€rsons Marriage Officers: -
rif iut admrnistrative officers and (b) any mi.nistst of religion ot psnon hotding a
ed,
responsible position in any religious denominatiofl or community whom the
the
\{inister of l-abour and Home Affairs has by notice published in lhe Gazette
the
s:pointed as a Marriage Officer.
ubt
to
ito
2.i.1 Civil ceremony
for
T.he ceremony is conducted by the Marriage Officer presumably in his office60
:nd must be in the presence of at least two witnesses competent to give evidence
be
:: a court of law.6l This will exclude persons appearing or proved to be afflicted
rith idiocy, lunacy or insanity, or labouring under imbecility of mind arising
rom intoxication ilr ctherwise.62 Children will also generally be excluded but
::latives by consanguinity or aflinity are eligible to be witnesses.ot The
;iremon,v must take place between the hours of six o'clock in the moming and
si-r o'clock in the aftemcon and it must be open to the public. By section B (1) of
aY
;f :ie Act the Marriage Officer must have proof from the parties lhat the banns of
:he marriage have been published or that they have a special licence exempting
Ia]
i.em from the publication of the banns and must be satisfied that there are no
io
--eal impedimenis lo the marriage.
is
to
Iy,
lhe marriage ceremony is purely secular in nature being simply an exchange of
i '.l* s before witnesses. Before the Marriage Officer calls upon the parties to
ui
;rchange their vows, he is otrliged to explain the consequen(rs and implications
he
:,r rhe proposed marriage to them.6a These are:
rn
2

)e
' .{ct makes no express mention of lhe place tbr the ceremony" C/. thc provision ol
T-:re
-i5 oi the Engiish Marriage Acl 1949 as amended by the Marriage Act '1983 which
=;-.:.:n
:::i.,ies for the cerenrorly to be held in the Rcgistrar's office. At prescnl under seclion 26(1)
*r i. a: inscrtcd hy the Marriage Act 1994, civii ceremonies may be solemnised on"apprttved
: -.-rii-ids ".
ju-:irrn 9 rll
Act. Lhc
: Evidcnce in Civil Proceetlings Act (Cap. 10:02).
S.-e section 4
: , -,
1tlri. sectrons ) and /.
- Ste ihe proviso tcl section 10 of the Act.
 2{t

(a) the fact that the maniage into which they proposed to
enter will, duiing its
subsistence, be a bar to either party thereto entering into
any other marriage
customary or otherwise;

!b) that the marriage cannot be dissolved during their liferime except Lry a valirl
divorce decree of a court of competent jurisdictiin, and
(c) that if either party, before the death of the other, contracts anr:ther marriage,
whether under the Act or under any customary law, whilst the existing marriale
is undissolved, he or she will thereby be guilty of bigamy an,t liable to
punishment for that offence.6s
Failure to explain the above consequences of the proposed marriage to the
parties may render the Marriage Officer liable ro a fine oi ptztt or in Jefault,
to
one month imprisonment.66

Having explained the consequences and implications of the marriage to the

parties, the Marriage Officsr will then require the bridegroom and the bri6e
to
repeat separately after him the following words:

'*l (name of bridegroom or bride) do solemnly declare that I know not of any lawful
impediment why I (name ol bridegroom or}ride) may not be joined in matri-mony tcl
(name of bridegroom or bride) here present,,

Atler this each of the parties shall say to the other these words:

"I caliupon these persons herc present to witness that I (name of bridegrr:om or bride)
do take (name o{ bridegroom or hride) to be my lawful wedded (husbanel or wifc)."

Thereupon the bridegroom and the bride shall give each other the right hand and
the Marriage officer shall declare the marriage solemnised in these words:

"I,declare that (name of bridegroom) and (narne of bride) here present are lawfully
joined in matrimony."

These words conclude the ceremony and make the parties husband and wife in
the eyes of the law. The parties are free to havc a religious ceremony atter this
but this latter event is devoid of any legal consequ.n.**luu

t'5
lbitl.
('r'
See section 20 of the Act
t'7
If subsequent events reveal an impediment the parties may be liable for perjury under s. 2l
of the Act.
('8
See section i 0 of the Act.
 21.

2.7.2 Religiousceremony
Theteligiouscefemonymaybeconductedinaccordancewiththeformularyin
a minlster of the church has been
use in the particurur'.r,u*rr, provideJ The cersmony must be conducted
cesignated by law ;; ; M"r;iug,
Ofti"*r.
beforeatieasttwowitnesses.For.'*pr*,r1^thecaseoftheAnglicanChurch,
common Prayer or any alternative
in the nolt or
rhe formulary is tnui tuia down
i""" "f r*-i.* in use at the time of the ceremony'

2.8 REGISTRATION OF' MARRIAGES

officer to keep a register of
section of the Act authorises every Marriage
ll into the
t'lm' H* it *;;inecli'v'that.section to enter
'ri*ritug.*
marriages ,ot"*nit*J-t'-y after
,ot**ni*;; ty tri* irnmediatelynames of the
their
said regisrer "n the full
place ancl_ dut* oitrrt marriage'
solemnisation, indicating the
;;ffi;; widower, bachelor or spinster)
parties, rheir ages, ii.e. wtretr,er widow,
andresidence.Theregisiermustalso'reflec!whetherthemarriagewasbybanns was
parties were.*Tott, whether there
or special licence ;;d";i one of borh
parental consent. rrr* f*itir1. sign
th"""girt*, ;n duplicate or they may rnake

in ttt' pt*tt"::l^ry..yo witnesses

will also
their mark. The Marriage Officer parties whilst
copy of th" entry is given to the
sign the regis'er.',') The-certified
rolutii*tt with the prescribed
rhe duplicare original i sent ro_
the n.gtrtr*
"1by th.e Registrar of Marriages or
regisf,r kept
fee.70 Every certified copy of the
ai'p,ima iacii evidence of the particula* set
bv a Marriug* Otfi"., is'regarded
out therein.t'

2.gOFFENCESRELATINGToTHEMARRIAGECEREM0NY

Variousoit.encesarestipulatcdbytheAct,abreachcfwhichmaylandthe
a fine of P1'
offender with a ir* or impri*on*eni. section 1? imposes
000 or u ,ou*i*.,*""ti,
";r-t*
v-r, i*prisonment on any
not being a Marriage
person,

of u p*ruon *ho performs i Customary'

ofticer,whoperformsamarriageceremonytretweentwopersons.Howevef,an Islamic'
exception is maJe in the "as,
*-T t* alrea<iy married under the
Hindu or other religious rites betwee;il;tlt
Act rhe same ;{;fi. :
i i-*:|:: ;::':;ff"fi.';"J*TiTff;1$Tfru:;
partres one :)'
.olemnises a marriage bctwccn l':l':'::'-''^;. prclcures
suc h a
lawfully *urri"i."xy p"r.on"*ho knowingly aids, abets, or

"' Sce scction 1 1 (2)'

-" 'fhe fce is currenlly P40' Sce S'l' No' 85 of 2{)04' :fis'
See section I l(6)' 1911 E'D'L'
r
Sec secriorr I1 (g) un.1'r1,.-snut;,
Afriian cor* oir;og eralcl v. cteen
 22

mariage is liable to.the same penalty.

lflection 19 iinposes a fine af p?0{} or a
ma-ximum term of three months of imprisonmcnt
on a Marriage officer who
solemnises a marriage knowing or having reason
to believe that there exists any
legal impediment, ather than thal stateci under
section 13 of the a.tlt"J*ri"rl
20 provides penalties for failure to make entries in
the mariage register, to
transmit the same to the Registrar, to explain
fhe consequences of the marriage to
the parties and section 21 provicles penalties
for false statements in connection
with the marriage.

, section 174 of the Penal code creates the offence of magiaee

I' fl1'r'tt*ore
drshonest or liaudulent intent. rn Morwarera and phudnhucrt,
with
appellants were charged with that offence. The
v. sratei. fi'* *u
evidence showed that the first
appellant represenied his elder brother in a marriage
cerernony with the second
appellant because his brother, Tomeletso, couki
not
attend due to failure tc
secure leave from his employers in south Africa.
The first appeilant thumb_
printed on the marriage cerlificate on his brother,s
behalf while the second
appellanf signed her name. They were convicted
by thc Maharapye senior
Magistrate and sentenced to three mcnths imprisonment.
on upp"ur, dre Hlgtr
court held that the appellants had deceived in" naurtiuge
officer and induced
him to certify that a marriage had taken place between
ti'em whereas it had not.
The court rvas of the view that the seriousness
of the offence should be judged
largely on what the appellants hopeil to gain
by it. on the evicience the
appellants had nr: cunning ideas rither than
a foorish attempt to avoid the
ptlstpcnement of the marriage ceremony.
The court theretbre varied the three
months prison term to nine months wholly suspended
fnr three y"uro on
condition that they were not convicted .f any orr*n"*
invorving distronesty.

secfions 777 and 173 of the Penal code create further

pretence of marriage and bigamy respectively.Ta
offences of fraudulcnt

'l Scc Chaptcr Frrur irrlzn.

" Unrcportc.i Daill Nerts 26 Fchrriarr .[9g5.
'' For thc pfoblcms crcaled by rhe oil'ence
of bigamy in a cornpararive jurisdiction, see c.o.
okonkwo "Bigamy in a polygamous society (Nigeria)"
76"
rwiai t iiseria, JurkjicaL Review
 22
23

lora
C}IAPTBR THREB
rvho
i afly
LEGAL CONSEQUENCES OF A MARRIAGE
ction
l, to T*el: are rrr o main legal consequences of a marriage contracted under the
ge to
h{"::iag Act. These are the invariable and variable consequences of the
xion
s-14!.
-.!ffi2.ts

3"1 Invariable consequences

with
two
trrst
ki€ aie consequences that arise from every marriage and which cannot be
ond
:lrred b1' the parties before or during the subsistence of the marriage. The
)to '.di,rning are some of such consequences"
rb-
3.1J Consortium
rnd
rior -[te parties must cohabit and allow each other to exercise his or her sexual
igh
:nr-ilege. which is exclusive to them. This means neither of them should have
;ed
:crual intercourse with another person. If that happens, adultery is committed
rot.
a-hich may be relied upon as evidence of the irretrievable breakdown of the
Ied
:n.arriage.7-t It may also entitle the innocent spouse to sue the paramour of the
tie
:":irr spuse for damages.t6 The right to cohabit and to have the exclusive right
the
--r :erual intercourse with each other are part of what is generally described as
:ee
on -*nsortium omnis vitae {'consortium'). This is an imprecise term usefully
smmiag up the totality of a number o-f rights, duties and advantages accruing to
:he spouses by virtue of the mariage." It is not possible to give a complete list

nt
rf the contents of the term but it includes intangibles such as loyalty, sympathetic
ca*re. affection and concern as well as material things of life such as physical
care. financial support, and rendering of services in the running of the common
household or in a iupport-generating business.lE

-See
section 15 (1) (a) of the Matrimonial Causes Act L913.
-'Ste
Kotze v. Kotze & Cam Civil Trial No.67/1969 (8 October 1971), unreporte<l , Ngakae v.
.\gakae & Anor. [1979-80J B.L.R. 248, Mangole v. Rapuleng [1990] B.I-.R. 450, Malikita v.
',\ ebb [1996] B.L.R. 986, Medupe v. Bcakanyang i1996J B.L.R. 612, Kaunda v. Pholi Civil
C:se ltio. 198811992 (6 September 1996), unreported and Mabote &Anor. v. Mahote F999] I
E L.R. 386 (cA).
See ihe South African cases <>t Grobbelaar v. Havenga 1964 (3> 5.A.522 {N) at p' 525'
' See the South African case of Peter v. Minister of Law and Order 1990 (4) S.A. 6 (E) at
-r Q_ln
 24

3.1.3 Change of status

The marriage changes the status of the parties. For instance, a party who was
a

minor before the marriage automatically becomes a major and retains this
majority even if the mariiage is subsequently terminated by death or divorce
before he or she reaches the age of majority (21 years). The majority status is
lost however if the marriage ii annulled. Furthermore, the parties may inherit
from each other without the necessity of a lestarnentary bequest.ffihe husband,
until recently, used to be regarded as the head of the family in which role he
made final iecisions relating to the marriage. However, with the coming into
effect of the Abolition of Marital Power Acl2()04,/" this role of the husband has
been abolished.B0 , The wife used to automatically acquire the husband's
domicilesl which domiciliary law generally govefns the proprietary
consequences of the marriage.s2 This unity of domicile of married persons
has
been abolished by the Abolition of Marital Power Act 2ff)4.83 The wife usually
assumes the husband's surnamesaalthough there is no legal requirement for
doing so. There is prohibition on donations between spouses married out of
comiunity of property. This renders voidable 'oevery transaction, whatever its
form or character, Lry which one of the spouses, gratuitously and solely or, at
least, mainly, out of the motives of liberality, confers an economic benefit upon
the other spouse, with the result that the giver becomes poorer and the receiver
richer."
8t' This rule, which originated from the Roman law, was designed to
protecr the spouses against their own weakness. The Romans believed that in
marriage, thire is one who loves and one who allows himself or herself to be
loved and so there was the fear that if donations were allowed freely between
spouses the more loving spouse might be tempted to buy domestic felicity at a
pii"". There up u nu*bei of exceptions to the prohibition' for example, it does
not appty where the marriage is null and void or if the donation does not involve
'givlng', tbr example, gratuitous performance of a service by one spouse for the
t1,
The Acr oame into etTect on I May 2005. See Abolition of Marital Power Act (date of
Commencement) Order, S.l. No. 30 of 2005 (29 April 2005). For a detaited discussion of
the
provisions of the Act, see E.K. Quansah "Abolition of marital power in Botswana: A new
dimension in marital relationship?" I University of Btttswana Law Journal (?005) 5'
section 5 af the Abalition of Marital Power Act 2004.
8{)
t' Sec
See Ep;ner v. Egner ll974l2 B-L'R. 5 at p. 7.
p See tritui r. liiut
fAOy"Z B.L.R. 333 (CA) an<l Thebe v- Kemodisa & Anor- [2001]
?
B.L.R.263.
8r
See section 16 of the Act
8a
See the Sautlr Afriean cases of Ex parte Dodds L949 (2) S.A. 311 (T) and Ex
parte Judaken
1es8 (4) S.A. 23e {r)
t, See tiatrto op. ,ir. p. 130. This has since been abolishecl in South Aliica. See sectir:n 22 of
the Matrimonial Property Act 88 of 1984.
 75

orher.s6 The prohibition has little or no practical effect whers the marriage
is in
community of property because since both spou$es ow1 the joint estate, a
jr:int estate to the joint
donation from one rpou** to the other goes from the
artata.*7

3.1.4 Reciprocal dutY af suPPort

The husband and wife have a reciprocal duty to support each other and any
children they may have in accordance with their financial circumstancss'88
Th"
and
obligation is to provicle the necessities of life, that is, food, clothing, shelter
is to be discharged, the
rned]cal attention. In rieciding how the duty of support
court is to take into accoun t, iiter alia, the ages of the parlies, the duration
of the
marriase, the standard of living of the parties anrl the respective earning capacity
(a)
of the f,oiti"..*n The duty of support ispremised on three conditions, namely,
rhere must be in existence a valid marriage between parties, (b) the
pariy
claiming lhe support must be in need of it and (c) the party from whom the
support is claimed must be in a position to render the support.

in practical terms, the husband used to bear the greater burden of this duty of
,upport by virtue of his erstwhile role of being the head of the family and
generally Laving the greater economic powel. Failure by the husband t0 carry
6ut rhis obligation will give his wife the right to pledge his credit for household
necessaries.'T This *e*ns she can purchase certain household items without
her
husband's permission if cerlain iequirements are met. These are (a) the
etand (tr) the existence of a joint household. The
existence oi a vatid mariage,
rvife's authority to pledge the husband's credit is derived ftom the marriage itself
and was not based on ih* expresseel or implie d consent of the husband.es The
rJuty continues as long as the husband and wife cohabit or there is a separation

* See Hahlo op. cit.132-1-51 and Boberg (19'/7) op' cit' 185-186'
''- See Hahlo op. cir. at pp. 160' 283-284.
" Seelorw v. Ogilvie [20001113.L.R. 355 at pp 360-361'
-' Ibid. al p. 361 appruving ihe factors set out in the South African case of Kroott v. Krcsrstt
1e86 (4) S.A. 616 (F,) at pp- 622'634.
-'See's. 14 ol the Abolifion of Marital Power Act 2004 which now impr:ses
joini and several
iiafrility lbr debts incurred by either party to a marriage oul of community of prr:perty ibr
household neccssaries.
" See the South Aliican cases o{ Excell v ' Douglas 1924 C.P.D. 412 and Oelofse v.
Grundling 1952 (1) S.A" 338 (C).
-:
See the south Atrican case of Clarksan v. Vsn Rensburg 19s1 {i) S.A. 595 (T} at P. 598.
 26

due to the husband's conduct. The duty terminates when the wife leaves the
husband without any just cause or commits adultery.e3

There are other rninor consequences such as, the creation of relationshio of
affinity between each spouse and the blood relations of each other.ea

3.2 Variatrle Consequences

The variable consequences of a marriage are concerned principally with

proprietary interests and they can be varied by the parties to the marriagrwithin
the framework of the law. The parties have a choice of having their*maliage
governed by the concept of cornmunity of property or opting out of it. rhe
choice is given by the Married Persons Property Act 1970. Prior to the inception
of this AcL the common law rebuttably presumed that all marriages contricted
under the Marriage Act were in community of property. This presumption was
rebutted by proof of the existence of a valid antenuptial contract in terms of
which community of properly and community of profit and loss were excludecl.
The 1970 Act reversed the common law presumption by providing in s. 3 of the
Act that all mariages solemnised after 1" Januiry 1971 (the date on which the
Act commenced) are deemed to be out of community of property, that is, the
concept of community of property does not apply if the mairimoniil domicile
is
Botswana unless the spouses shall, by an instrument in writing, signed by each
of them prior to the solemnisation of their marriage and in the presenc* of t*o
persons, one of whom shall be an Administrative Officer or Justice of
the peace
or commissioner of oath stating that they want the concept to apply to their
marriage' Such instrument must be registered in the Deeds Registiy within 90
days of its execution.

Furthermore, try section 7 (1) of the AcL the proprietary consequences

of
marriages of persons subject to customary law ar" gouerneclby customary
law.
That section provides that subject to the provision of the section und th.
Dissolution of Marriages of persons Subjeci to customary Law (Disposal of
Property) Act 1926.'" uny person subject to customary law who marries
otherwise than under customary law shall have his or her property governed
by
the relevant customary law. However, by section 7
e) ;t tire Aci the parties
s sec the south Airican case of chamani v. Chamani lg79 (4)s.A. s04 (w).
'- I'or a criticism of the invariable consequences,
see Molokomme, A. ,.Marriage: What every
woman wants or a declaration of 'civil death'? Sonre legal aspects of the statils of
married
in Botswana." ( 1984) 4 Pula- Botswana Journat of African Studies 70.
X,y.n
'''
Thc Act camc into cfl'cct on I Januarv 1929.
 27
26

es the ?.:-- fniti to the solemnisation Of the marriage or where the marriage was
the Act, express their wish to be
':ie:::iisetl prior to the commencement of
writing signed by each of them in
in
=r:ni:::,1 trom this rule by an instrument
rip of of two witnesses, one of whom shall be an administrative officer, a
=* =..=n."
*sl;; .rf the peace, or a commissioner of oaths.e6

T:,: :ltect of section 7 is that as a general rule, cu$tomafy law applies to the
:,:iiine. disposing and devolution in case of intestacy, of property of persons
with *." -r*. subject to any of the customary laws of Botswana and who marry under
githin :: \faniagl A"t uni**t a contrary intention is expressly shown by the parties
niage ;,.,ncemed. Alternatively, the required conlrary intention may be inferred from
The --:; mode of life of the spouses or from the manner of disposition of any property
:ption ;uring the marriage wHictr rnakes it unjust and inequitable that such properiies be
acted g.]*,erired by customary law as provided by s. 2 (1) of the Dissolution of
I Was It"oiug. olPersons Subject to Cultomary t-aw (Disposal ,of Property) Act 1926'
ns of Hait'ro-n-Benjamin C.J. in Moisukrtmtt v. Mrtisakumo (2)"' explesse.d his doubts
uded. about the application of the 19?6 Act to post \929 marciagesi.l This expression
>f the ,rf doubt notwithstanding, Hannah J. in'Molomo v' Molomoe'r applied it to the
h the marriage in issue in the lase. The parties, who were subject to customary law,
;. rhe r*ere married in community of propefty and on divorce; the question arose as to
:i1e is *,hether or not customary law should be used to divide their assets. The court
each held, relying on sectiog2 (1) of the 1976 Act, that the mode of life of the spouses
I twa ,tur-'rophiiticated'and hence it would be unjust and inequitable to have the
reace matrimonial assets divided in accordance with customary law. The common law
their was accordingly applied to the division of their assets. The factors that seemed
n90 to have influJncedthe court to come to a conclusion that the parties' mode of life
did not lend itself to the application of customary law were the fact that during
the subsistence of the mariiage, the parties lived in an urban setting, namely,
rs of Gaborone, Molepolole and Mochurti (although the latter two are officially
law. retbrred to as villages), their level of education, husband having studied in
r the Canada and at the tlme of the proceedings was a lecturer in the University of
rl of Botswana and the wife being a teacher. Furthermore, the couple had built up
.rries businesses with substantial turnover. The degree of deviation from tribal life,
dbv
',,,Specimen of the various instruments to be signcd is set out in thc first and secsnd schedulcs
to lhe Ac1.
e7 1981 (1) B.L.R. 126 at p. i31.
i's
This *ur'ur u result of the Bechuanaland Court of Appeal's intelpretatictn of the subsection
in Frankel NO snd, Ors. v. Sechele [1964"| B.L.R. -5 al p. \I per Murray A'J'A. to the eftbct
that it does not apply to ptlst-1929 marriages.
"t' t 979-8{) Il.L.R. 250
 28

which will be sufficient to rebut the presumption of the apptication of customary

law, is not easy to ascertain. However, judicial attitude in other African
jurisdictions $eems to support the factors taken into account in Molomo s case100,
atthougfr such factors as evidence of rebuttal are not free from criticism.

From the above provisions it can be concluded that the separate matrimonial
property regime Itnorv the primary matrimonial property regime'for those
putii"* who-are not subject to customary law unless prior to the marriage, they
irad signed the requisite form exempting them from the provisions of the Act.

Parties who maried prior to the commencement of the Act and whose
matrimonial domicile is Botswana are given the option by s' 4 to make lhe
marriage. That is, they can change their
-regime to their
provisions of the Act applicable
matrimonial property from community of property t0 one out of
community of property. They can do this by a notarial deed expressing a wish to
that ef{ect. Such a notarial deed is to be published in the Government Gazette
and registered in the Deeds Registry on payment of a nominal fee' The
registralion of the notarial deed shall not affect any rights of creditors existing
beiween the ciate of the marriage and the date of the registration of the notariai
deed.

3.2.1 Marriages to which the Married Persons Property Act applies

Where the parties do not sign the instrument specified in section 3 exempting
their marriage from the provisions of the Act, their marriage is out of community
of property.l0l The consequence of this is that the spouses have no common
property or joint liability. Two estates arise consisting of the separate assets and
iiut ltitlir oi each party. Each spouse retains whatever property he or she had
before the marriage and any that may be subsequently acquired unless of course
in acquiring any post-nuptial property, a clear intention is shown of joint
o*oerihip. In this regard, section 15 (1) of the Abolition of Marital Power Act

5 }f.L.R: 102; Salacuse, J.W.

'il" See for example" the Nigerian case of Smithv Smith {7924}
,,The Cole and Cole principlc anrl the manner of lif'e theory" (1964) Nigerian Law J<surnal 54;
the Lesothi: cases of Mo&arasiv. Makorosi 1961-'/{t L.L.R. 1 at p' 6; Hoohlo v. Haohb 196'l-
70 L.f,.R.. 3 l B an<t M okhethi v. Makhtthi l9-1 4-7 5 L'L'R. 404.
I0r
See Magwe v. Mtsgwe Misca No. MC 84/95 (27 July 2001,) unrepcrted where Reynolds J.
o'persons lawfully married
commentirig on the said section 3 at p. 3 of the transcript, held that
in Botswana are automatically married out of community of property unless the parties
specitically express their wish tha! community of property and any al the other consequences
specitied i6uriO be applicable and they correctly follow the procedures set out in adopting
that course".
 28 79

:omary l r,r: p;s1.ides that the provisions of the Act relating to the administration of the
\.frican ,::: estate of spouses married in community of property will apply to the said
ase'oo, " : -:lv acquired property.

3:J .{dvantages/disadvantages of maniage out of community of

nonial prop€rt"y-.
those
:. they T'r: main advantage of a complete sepafation of property is that each spouse
rCt. ::;alns his or her own estate and has the power to do with it as he or she thinks
l:" The spouses are generally not liable for each other's debts incurred before or
*hose r:dng the marriage. Thus, this matrimonial regime may prove advantageous to,
ie the i:'r instance, a well-off widower who contracts the so-called marriage of
: their o:mpanionship with a wealthy widow. This regime will ensure that their
ut of :espective estates are kopt intact for their respective heirs.t0' It may also be
ish to
='3r'antageous to a woman with a formal
job, a business or some income-
azette *enerating activity. Such a womaR may prefer this type of matrimonial regime
The kcause of the freedom it gives her to deal with her own separate property.
isting
rtarial The main disadvantage of a marriage out of community of property is_tat the
stouses have no legal right to share in the growth of each other"s estate.ruj This
creates hardship for the spouse, usually the wife, who has an inferior economic
rower when tlie marriage is dissolved by either death or divorcc. tt fails to
:-crrsnise the contribution to the property of the household of the spouse who is
pting t,l ecotofilically active thus making nonsense any argument that the separation
:unity :,i property is based on the principle of equality.tuo It also disregards the reality
1r'r
of a vast majority of househclds, where a de I'actt; merger of the two estates takes
place to such an extent that it is extremely difficult to distinguish and disentangle
property belonging ti: each spouse.'0'5 When one considers the fact that the
court's power to determine the mutual property rights of spouses on divorce has
been narrowly interpreted io exclude discretion to adjust property rights
equitably, the aitraction that this regime may appear to have for women may
prove to be illusory in practice. It has also been stated that many men feel
threatened by this matrimonial property regime, as it appears io undermine their

I"r
Scc Oronjc antl Hcaton ap. cit. at p. I28.
"'r See the South Africa n case a{ Beira v. Bei.ra 1990 (3) S.A. 802 0V) ar pp. 804-.305.
r{rd
In Englanci for instance, the doctrine of separate property was in accord with the notions of
philosophical individualism under which the legal subordination of onc sex to the othe r would
be replaced by a "principle of perfect equality, admitting no power or priviiege itn one sicje.
nor disability on the other." See J.S. MillThe Suh.iection of Women Lnndon, 1869 ar p.163.
"rt See A.H. Van Wvk "Matrimonial property rystems in cornparative perspective" ilgSir
Acta.Iuritlica 53 at p. 62.
 30

male authority, control and power over the family property, the children and the
wife.r06 Whilst this fear may be misplaced in practice, the patriarchal social
ordering milieu, which breeds this fear, must be acknowledged. The patriarchal
nature of Tswana society is premised on male control of property and hence any
factor, which may seem to threaten this state of affairs, will naturally be viewed
with suspicion and apprehension.

3.3 Maniage to which the Mamied Persons Property Act is inapplicable

These marriages will be those contracted before 1 January 1971 or post-1971

marriages, the parties to which have indicated that they do not want the
provisions of the Act to apply to the said mariage in accordance with section 3.
In that event, community of property applies to thes^e_marriages. The exact legal
nature of this regime has been a matter of debate.'u' This nolwithstanding, the
result of the application of this regime to the marriage is that the property of each
spouse on marriage and whatever is acquired after the marriage is held in one
cc,mmon estate called the joint estate.rOs All profits go into this estate and debts
are paid out o[ the same.roe

3.3.1 Marital power'10

An accompanying right which used to be attached to the community of property
regime is the exercise by the husband of the marital power of the marriage. This
power in its widest sense embraced three elements, namely:
(a) The husband's power as head of the fumily.ltr By virtue of which he has the
decisive say in all matters concerning the common life of the spouses and
determines , inter alia, where and in what style they are to live.

106
5". T Maundeni "Property issues in dissolution of marriages in Botswana: Divorced
mothers and disadvantage" paper presented to a conference on Cender: Oppo*unities and
Challenges Report of the National Conference Proceedings 22 -24 October 2001 at p. 87.
"'t Sec H,J. Eramus et al Lee & Honore Family, Things entl Successir:n" Butterworths, Durban
1983 at para. 80 and Hahlo op. cil. at pp. 158-159.
'{}n Certain assets are excluded from the joint estate. For exarnple, asset which a thir<I party
gives or bequeaths to one of the spouses with a proviso that it shall be excluded from the
communily. Scc the South African cases of Erasmus v. Erasmus 1942 A.D.265 and Cuming
v. Cuming 1945 A.D.201. See also Hahlo op. cit at pp. 164-.169 and Cronje & Heaton op. cit.
at pp. 86-89.
""'See Hahlo op. cit. atp.2l5 and Molokomme op, cit.
rr0
This power has now been abolished by sections 4 and 5 of The Abolition of Marital Power
Act 2004. The discussion under this section therefclre is of historical interesl only. Sce B.K.
Quansah "Abolition of the marital power in Botswana ..." op. cit. pp. B-13.
'" This role has been abolished bv the 2004 Act.
30
31

the b, The husband's power over the person of his wife, including her
ial in legal proceedings and
=presentation
hal ;' The husband's power over t}e properfy of the wife. This enabled the
rrly lu-sband. in his absolute discretion, to
deal with the ioint estate as its
'ed a,irninistrator and to do the same with the separate assets of ur wife, which do
:rr form part of the joint eslate.1l2 The power under (a) was part of the
:r'ariable consequences of marriage. The powers under {tr) and (c) however
rle *-cre part of the variable consequences and together make up the narrow sense in
*-hich the term was used.
t7L
the l[he husbaad by virtue of his acquisition of the marital power became the sole
r3. iirninistrator of the joint estate although the spouses owned it jointly in equal
gal ,.ndir-ided shares.$t is hs who entered into all transactions relating to property
the :nc the wife could not exercise any rights over her share until the community
rch a-;-r dissolved by death or divorce. Furthermore, the marital power involved the
)ne :isband assisting the wife in, for instance, bringing or defending a case in court,
bts :t':aining credit from the bank and other financial institutions and receiving and
-nsfening immovable property.l't The sum total cf the exercise of the marital
3or-er was that the wife was deprived of fuIl legal capacity and to all intents and
srposes .became subordinated to the husband during the subsistence of the
narriage.l'a
rty
bis It was clear that the maritai power enabled the husband to wield an enorrnous
idluenee in the marriage, an influence which if not used responsibly may have a
E
id
disastrous effect on the rnarriage and any children of it. It is with this realisation
that the Common law tried to ameliorate, without much success, the oppressive
nature of the marital power by providing some protection against its abuse.lls
The unsatisfactory nature of the exercise of the power led to its eventual
d abolition, which will be presently discussed.
rd

t€

oo
t. i12
See Modisev. Modise [i99]l B.L.R.333 ar p.335.
"3 The Deeds Registry (Amendment) Act 1996 allows all married women. irrcspective of lhc
matrimonial regime under which they are married, 10 execute any deed or document required
or permitlcd to tre registered in the Deeds Registry without the assistance of their husbands.
rra
See./oinc &Associatesv.BakwenaModikwa [1999] 1 B.L.R.475 {CA).
r15
see E.K. Quansah "Abolition of marital po*.i in Bltswana..." op. cit. nole 109 at pp. l0-
1l tbr the said common law protection.
 32

3.3.2 Abolition of the marital powertto

On 20 December 2AA4, Parliament passed the Abolition of Marital Power Act

20{M.117 Section 4 of the Act abolished the common law rule in terms of which a
husband acquires the marital power over the person and property of his wife.
The abolition is in respect of existing and future marriages in community of
property. The abolition of the marital power terminated the system of
administration of the joint estate in which the husband was regarded as the sole
administrator of the estate. The Act created equal management powers in relation
to the joint estate and juristic acts with regard to the same. The l*gislature took
the opportunity to include in..!fre provisions of the Act, matters regarding the
domiiile of married -omen'l8 and the domicile and guar<lianship of minor
childrenlre although these are not consequences attendant to the exercise of the
marital power.

3.3.3 Equal management of the joint estate

The combined efTect of sections 7120 and 8121 of the Abolition of Marital Power
Act is to give spouses married in community <lf property equal, concurtent or
independent management of the joint estate. Both. spouses have the power to
perform acts, which will be binding on the joint estate without the consent or
even the prior knowledge of the other spouse. Thus, a wife may buy a car,
borrow money from the Bank or buy shares in a company listed on the Stock
Exchange without the consent of her husband. However, there are certain
defined acts affecting the joint estate, which can only be performed with the
t22
consent of the other spouse. Such acts are regarded as being so important to
the spouses that a unilateral action on the part of either spouse may lead to
serious friction behveen them. For example, a spouse can neither alienate nor
mortgage any immovable property forming part of the joint estate nor can he

''t'See E.K. Quansah "Abolition of marital power in Botswana..." op. cit. supra. Sec also T.
Jobeta. "Recent Developmenis in Family Law in Botswana: The Abolition ol Marital Power
Acf' (2006) The lnternational Survev of Familt'Law 93.
"t Sce note 79 supra.
"* Scc s. 16 of the Act.
'lo S"" ss. 17 anii 18 oi the Act. For a discussion on the said sections, see E.K. Quansah
"Abolitisrr of marital power in Botswana..." op. cit. atpp.23-26.
120
The section provides that: "...a husband and wife married in community of property shall
have equal capacity to - (a) dispose of the assets of the joint estate; (b) contract debts for
which the joint estate is liable; and (c) administer the joint estate."
llr J-he section provides that: ".".a spouse manied in community of property may perform
any juristic acl with regard to the joint estate without the consent of the olher spouse."
t" S"" section 9 of the Act.
 1-
-)z JJ

i;naie or pledge any livestock, borehole or motor car forming part of the joint
::':-tc $ ithout the consent of the other spouse.
{ct
:ha required must be in writing but the Act does not indicate whether
'-:-c '-onsent
ife. ":; ;ht-ruld be before, at the time of, or after the act has been perfbrmecl.ls3 In
of :':ncrple. once consent is given, a spouse may revoke such consent at any time
of :rj'::e the act in question has been performed. Where the consent is given it will
ole -Ehclate only between the spouses. If a spouse were to die during the currency of
o-t : a;r-en consent, an executor, tbr example, may nol consider himself bound by a
ok ---{L<€nt given by the deceased.l3a If any act requiring consent is performed
he ;-r:hout that consent or leave of the court, such an act may be set aside at the
lor -:,i:-ance of the spouse who suffers prejudice as a result of such performance.l2't
he
3*1.4 Protection of spouses against each other

Srcdon 12 (1) of the Act permits a spouse seeking consent to apply to the court
:,ri leave to perform an act without the consent if the requisite consent cannot be
er :b:ained because it has been unreasonably withheld by the other spouse or there
or ;: some good reason to dispense with the consent. Furthermore, the section
to :rovides that if the courl is satisfied that it is essential for the protection of a
or :pcuse's interest in the joint estate, it rnay, on application of such spouse,
lr. :uspend for a definite or indefinite period any powcr that the other spouse may
tk erercise with regard to the joint estate. An order to this effect may not only
in :lltct the capacity of the spouse whose powers have been suspended to perform
!e acts for which consent is required but it will also affect hislher capacity to
lo perform acts for which consent is not required. ln the former circumstance the
:o tther spouse may perform the acts on hisiher own without the sonsent of the
)r spouse whose powers have been suspended.
te

3J.5 Spouses' capacity to litigate

t-.

:r
Section 13 of the Act regulates the capacity of the spouses to litigate by
providing as a general rule that a spouse married in community of property shall

:r See Se&ga v. Pule cQ Ors.f2000l I B.L.R. 16 where it was hcld that an ordinary letcr
>i-tned by a wil'e was sufficient compliance with the consent requirement of s. 18{5) of the
Deeds Registry Act 1960 as amended by r. ?(c) of lhe Deeds Registry Act 1996.
-- A similar provision in section 15 the South A{iican Malrimonial Property Acl 1984 has
Seen interpretecl to mean that rhe consent requirement operates between iiving spouses. See
Kctze v. Oosrhuizen 1988 (3) S.A. 578 (c).
:'See further E.K.
Quansah "Abolition of the marital power in Botswana ..)' up. cir. at pp.
:6-17
 34

not, without the written consent of the other spouse, institute or defend legal
proceedings against a third party. This means that such a spouse
cannot act as a
plainfiff cr defendant in a case without the written cons*ni of the other
spouse.
In terms of s. 12 of the Act, if a spouse unreasonably withholds his or her
consent 0r if such conselt cannot for good reason be obtained, a court
may be
asked to dispense with the requisite consent. However, such written
consent is
not required where the proceedings are:
(a) in respect ofa spouse,s separate property;
(b) for the recovery of damages, other than damages for patrimonial
loss, by
reason of the commission of a delict against the spouie bringing
the proceedings;
(c) in respect of a matter relating io a spoui",, ,"pu.o:t* profession,
traie,
occupation or business.

A party to a proceeding instituted without the requisite consent may

not
challenge the proceeding on the ground that the ,*quirit" consent
has not be
given. In other words, a breach of the provisions in s. 13 of the Act
does not
affect the validity of the proceeding.t26

3.3.6 Advantages/disadvantages of the community of property

regime
The obvious advantage of marriage in community of property
is that the spouses
share in each otler's financial prosperity. This is particutarty
advantageous to a
wife who, after mariage, does not go out to work and thus is irnable
to
contribute financially to the increase of the joint estate.
She is still entitled to
share equally with her husband on the community
coming to an end. This
matrimonial regime.-gives due recognition to the ,on".pi
of marriage as a
of. a collaborative and construcrive enterprise on the pari
l::::.r:tg
spouses.'-' I'he resources of the spouses are pulled t,ogether and
of the
used for the
joint benefit of the members of the household, withour
Jny^ thought being given
to the ownership of short-terrn assets being acquired.rJn Furthermore,
this
regime has theoreticar and practical simpriciry.r24 since
there is one Jtngl,
estate, there is virtually nn possibility ihat th* ,pour"s
will collude to &e
detriment of crediiors.^ There is a purposive interaction
between the spouses
without the necessity for the spouses tb keep detailed books
of accounrs and

'tt'see s' l3 (2) o{the Act' The lack-of the requisire consent may
affect lhe scparale estate of
instituted the proceedings withour consenr. see ss. 13
ll,.:po::.,*ho
'-' See K'J Gray Reallocatioi af Propirty on Divorce Professional (3) and (4) of rhe Acr.
Books, Abingdon 1977 at
p. 35.
r$
Scc Van Wyk op. ci. at pp. 64-65.
t.,,
Ibid.
 34 35

egal -nr.nioriec for possible accounting purpose when the community comes to an
asa :nd b1'death or divorce.
rusg.
her The main disadvantage of the community of property regime is that the spouses
r" be =mre in each other's financial setbacks and as such may ruin each other by their
:r is :r-':Iligate behaviour. It also exposes any cantribution by one spouse to the
ciaims of the other's creditors. Another disadva:rtage is that it leaves little scope
r+r individuality of the spouses and gives the less-well-to-do spouse an
,by ':ndeserved share in the pre-marital and inherited property of the other spouse.l30
rs;
lde,

not
be
not

ses
.oa
to
Ito
his
ia
the
the
ien
his
gie
the
E5
I
i
I
- Tlere is empirical evidence lhal this
malrimonial property regime is more popular than lhar
:'j r-ut of communily of property regirne. See P.E. KidrJ et al Batswana Families ancl
Lt )l',.,rnen's Right.s
in a Changing En,-iranment, wlLSA, tgg7 atp. s2. see also Mogwe v.
\!:,?'+'e op. cit. where the court accepted a submission by the defendant, which was not
chailenged by the plainriff, that it is part of Batswana.culture to marry in community
=dousil'
:: ;roperty.
 36

CHAPTER FOUR

MARRIAGE UNDER CUSTOMARY IAW

There is no single customary law applicable to all tribes in Botswana. Statutory

definition of customary law is that it consisls of rules of law, which by custom
are applicable to any particular tribe or tribal community in Botswana, not being
rules, which are inconsistent with the provisions of any enactment or contrary to
morality, humanity or natural justice.r3l It follows from this definition that
customary law applicable to marriage will vary from tribe to tribe. The
discussion of mariiage in this chapter thsrefbre will focus on the formalities that
ate generally applicable to the various tribes in the country pointing out
differences where relevant. It must be emphasised that customary marriages are
fully recognised by the law and full effect is given to its attendant
consequences.

4,L Nature of marriage under customary law

Marriage under the various customary laws is potentially polygamous for men.
ln other words, men are at liberty, depending on their financial circumstances, to
have as many wives as they choose to have. Women, on the other hand, are
forbidden to have more than oge husband at a time. Consequently, for them
marriage is monogamous, polyandry being prelscribed by law. Thus the nature
of a customary marriage may be summed up by stating that it is potentially
polygamous in the sense thal during its subsistence, no legal impediment .{:ll
io t-fr. contracting of another marriage(s) under customary law by the husband.'''''
In general, where monogamy is practised, either it is a self-denying ordinance in
the sense that a man voluntarily renounces or abstains from polygamy, or it is
diclated by his inability to afford more than one wife.

A customary marriage is generally regarded not just as a union between a man

and a woman, but as an alliance between two families, effected thrr:ugh the
union of the sporses.t3* The predominant role of the family is manifested in the
various formalities that are attended to the marriage.

'3' Sec section 2 Customary Law Act 1969 and Cuslomary Cnurls Act
1968 respectively.
'r' Se" lbr example, sections 13 (2) and 22 ttt tho Marriage Act 2000.
r33
Scction 13 (2) of the Marriage Act 20{10 however, prevenls a husband or wil'e ol a
cu$tomary inarriage lrom marrying another person under the Act whilst the custtlmarv
marriagc belween lhem is stili suhsisting.
ttt*
S*" however, A.N. Allott, ssays in African law Butlerworlhs, London 1970 at p. 229 whct
expressed the view that 'alliance' may not be the correct word in this context since the two
 36 31

1't Essential elements of a customary marriage

Ite essential elements of a customary rnarriage may be Said to be as follows:

zlutory : r cr--lESent of the parties, (b) capacity of the parties to marry and to marry each
custom -ter. (c) a request made for the woman in marriage to representatives of her
{ being :=rjlr b1' the representatives of the man's family and the aceeptance of this
trary to :*;uest b,v the woman's family and 1d; the transfer of livestock (bagadi) from the
on that r:tan's iamily to the woman's fzunily.t3s There is some dispute as to whether this
. The i.:iter element is essential to the validity of the marriage. Schapera has stated that
ies that -according to Tswana law, no man"iage is regarded as complete unless bogadi
ng out :las been given by the husband's people to the wife's people"''''o What
ges are !-onstitutes iompleteness in this context is a subject of debate. Does it mean for
rendant :xample, valid and if so, does its non-transfer render the marriage invalid? It
**i from Roberts' research that although the transfer or payment of. bogadi is
srill recognised as part of the marriage formalities, failure to transfer it or non-
pagnent of it rloes not affect the validity of the marriage. However, in some
circamstances such transfer Or payment serves an evidential purpose in
r men. ietermining whether a marriage has iaken place or not,ltt This view seems to
Kes, to have gained judicial support inMphoyakgosiv..lakobar''6 with regard to Ngwato
rd. are customary liw. It was held in that case that the transler or payment of bogadi
r them rvas not ag essential ingredient of a valid marriage although many Ngwato think
nature its paymoent cements the bond between the families of the bride and the
ntially goom.
exists
md.t33 4.2.1 Consent of the Parties
mce in
lr it is Traditional society did not accord much significance to the consent r:f the parties.
They were not allowed to choose their partners as the marriage was arranged
between the families. The consent of their respective families was more
important. As already stated with regarcl to engagemenf, it is the representafives

families have little contact except when a divorce is in queslion. See also B. Ollhogile "ls
customary rnafty a 'union'?" ( l9S9) 2l Botswana Nates and Recard 6L'
See Slhapera op. cit at p. 125, Robcrts op, cit at p. 3l B.J. Van
,3, Niekerk "Notes on the
Kwena taw of marriage"(b68) I Comparati've and bzternational Law Jottrnal of Srxtthern
Alf ica lOt) and Mplzoyakgo-ti v' ./akohs t 1997] ts.L-'R' 604 at p' 608'
'3n schapera op. cit al
p. 138.
'tt See Roberts op. cit. al p.35.
'3E op. cit. supra.
'ru The couri adopted the dicta of Cotran J. in Sennye
Mokti & Mmakganekt Maleje t"
Mmttkgomo Mapoyu & Ntshe.kang RankEiawana Civil Appeai Ng. Fl7l1990, unreported'
 38

of the man's family who make the formal marriage proposal to the fumily of the
bride. However, the contemporary reality is that the consent of the parties is now
regarded as essential. More often than not it is the parties who first agree to
marry and then inform their individual families to go ahead with the formalities.
Judicial recognition has been given to this element of the marriage.'o')

4.2.2 Capacity of the parties to marry and to marry each other

There are twc aspects of capacity, namely capacity on the part of the individual
party to contract the marriage and capacity to marry each other, which may be
affected by relationships by consanguinity or affinity.

4.2.3 Individual capacity

Incapacity to marry as an individual may be due either to being under age or the
existence of a prior statutory mariage between the particular individual and a
third party. Cenerally, customary law does not prescribe the minimum age at
which a person may marry. The yard stick is normally the age of puberty or the
initiation into a regiment. However, in view of the statutory prescription of 18
years as the minimum age for marriage under the Marriage Act 204'ot it may
be said that the same minimum age should also be applicable to marriages under
customary law. The existence of a prior statutory mariage between an
individual and a third party is a bar to marriage to another person under
customary law. This is made clear under section 13 (1) of the Marriage Act
20{4,-

A related question, which may be raised here, is whether a person not subject to
customary law can contract a customary law marriage with one who is subject to
customary law. A person subject to customary law is one who is a member of a
lril"re or tribal community of Botswana or a member of a tribe or similar group of
any other African country prescribed by the Minister of t ocal Government by
order published in the Government Gazette for the purposes of the Customary
Courts Act.ra: It follows from this that one who cannot claim to belong to a tribe
or tribal community of Botswana or the designated African country is a person
not subject to customary law.

'tt' See Mphayakgrssi v..lakoba op. cit atp. 608.

lu' See scclion 14 ol the Act.
tu2
S** secliern 2 Customary Courts Act 1968 (2002 Rev") and Customary Law Act 1969
(2002 Rcv.) respectively. No Alrican country has yet been designated for the purposes of
these sections.
 39

S:crion 5 ol the Customary Law Actras provides thai:

1-rLrj+ct to any lvriffen law, where in a case or proceeding between tribesmen and
-:t-\men non-
-
, ' i: shall appear either iiom express agreement, or from all the relevant circumstances,
-:-: each intended or may reasonably be deemed to have intended the matter to be
:czula:ed according to customary law or
b i The parties express to the courf their consent to any customary law being applicable,
:l"n: law shall be apptied accordingly, ancl any consent refened to in paragripf, .r'ufi
le recorded in writing and a$ached to the court record of thc c,n.*und iny shall be
irrevocable."

It is submitted that under this rule a person not subject to customary law may
agree to marry in accordance with a particular customary law and effect woulb
be given to this agreement. Thus a chanaian man may agree to be married in
accordance with Ngwato customary law to an Ngwato woman in terms of this
nrle and the Ngwato cuslomary law will accordingly be applied to the validity of
the marriage.

1.2.4 Capacity to marry each other

.{ccording to Schapera,r44 a man's choice of a wife is limited to some extent by

relationship of consarfluinity in that he is not allowed to marry his own mothei,
sister, or half-sister, daughter, tbther's sister or mother'r ,ister. He may.
however, cohabit with his father's widow, if she is not his own mother alttrougtr
this arrangement is not regarded as a marriage. In the context of affinity, u *io
may not marry his mother-in-law, daughter-in-law, stepmother, step.sister or
stepdaughter' These prohibited degrees of consanguinity and affiniiy are of
general application although exceptions do exist. For example, it is iaid
that
among the Kgatla, a man may marry the daughter of his parenti' brother or sister
or that cf a maternal uncle or paternal aunt.las

4.2.5 Request for the weman in marriage

This involves a series of negotiations between the family of the man and the
family of the woman during which the former requesir for the woman in
marriage. If the woman's family agrees to this request, the first stage of the

'"
t' Cup. 16:01 2002 Rev.
Op. cit. aLp. lZ7.
'" Sce Roberls op. cit. at p.25.
 40

negotiations, calledparld is comp1ete.la6 This is followed by confirmation of the

betrothal, which is done by the man's family sending to the woman's family an
animal for slaughter or some other gifts to the woman. When these gifts are
accepted the betrothal is complete. A feast is organised by the woman's family
to mark the occasion.

4.2.6 Payment tf bogadilal

As indicated above, the payment af bagadl is generally not regarded as an

essential element of a customary marriage but it plays such a significant part that
it is worthwhile to discuss it further. The bogadi involves a presentation of cattle
or other livestock by members of the man's family in favour of the father or
guardian of the woman. It is spoken of as thanksgiving (tebogo) to the wife's
parents for the care they have taken in bringing up the woman and to show their
gratitude for allowing the man to marry the woman. It is also said to be
compensation to the woman's family for the loss of her services. The
responsibility for its presentation primarily rests with the man's guardian
although nothing prevents the man from contributing towards it. Contribution
comes from the rclaiives of the man, notably, senior maternal uncles.

4.2.7 Quantum of bogadi

Although bogadi was traditionally presented in the form of cattle or some other
livestock, it is nowadays common for it to be given in cash. According to
Roberts, there is no fixed amount or number of cattle to be given but an even
number is preferable. It is usual, for example, fof six cattle to be presented
among the Kgatla, four among the Malete, two among the Tlokwa and four or
six among the Rolong.'** Th" bogadi must be paid in full, there is no room for
payment by instalments but the time of paymeni may vary from tribe to tribe.rae
Once presented it is rarely returned, however, in certain circumstances it may be
returned. For example, among the Kgatla it is said that the bagadi may be
claimed where the woman for whom it was presented refused to consummate the
marriage.l'to

't" See Schapera ap. cit. p. 131.

'ut S"" Schapera op. cit. at pp. 138-147 and D.D.N. Nsereko "The nature and function of
marriage gifts in customary African marriage'n i1975) 23 AntericunJounzal of Compurutive
Law 682.
'on Sce Roberts op. cit,
'ou See Schapera tsp. cit. at p. 141.
't" See Roberts otrt. cit. al p. 37.
0 41

e {a8 Significance of bogadi

n
e Tbe most important consequence that arises from the presentation of the bogadi
! s ihai ir legitimises or establishes filiations of the children of the marriage. In
words, the man and his family become entitled to the legal custody of the
'.,'ier
children of the marriage. All such children borne by a married woman,
irrespective of who their actual father may be, are regarded as thc legal children
rf the man on whnse behalf bogadi for that woman was prcsented.''" As
rncicated above, failure to present bogadi does not affect the validity of the
rnarriage.

43 Essential conditions for the validity of Islamic mariagersz

-\s will be seen below, Part II of the Marriage Act 2t)00 for the first time
introduced the registration of Muslim, Hindu and other religious marriages. Of
rhese religious marriages, a unilateral decision has been tak'tjn to use Islamic
r){uslim) marriage as an example of the type of religious marriages, which can
be registered under Part II of the Act. A brief overview will therefore be given
of an Islamic marriage :

lslam is a comprehensive system governing all aspects of life of the adherents,

material and spiritual. The Shari'afr comprises the rulings, which govern
behaviour in the areas of religion, morals, legal relationships and economic
s1'stems.

A valid Islamic marriage is a conlract between a man and a woman, in which a

dowry is given to her by the future husband and which does not violate any of
the prohibitions against marriage. Islamic marriage is a civil contract and not a
sacramenf; it may be enfered into by perso1rs who have full legal capacity. The
bridegroom makes the contract with the guardian of the bride ('wall') and
promises to pay the dowry to the wife" This is unlike customary law where the
bagadi is given to ihe parents and relatives of the bride. The request and
acceptance of marriage must be made at the same meeting, and in the presence
of witnesses; two men and two women. The guardian ('wali', the nearest
relative) has the power to give his minor ward into marriage even if he or she is

'5' See Schapera 0p. cif. at p. 139.

'52 The view expressed in this section is a distillation of various works on Islamic law. The
reader is rel'erred to works such as J.N. D. Anderson Islamic Law in Africa, Frank Cass,
l-crndon 1910; 1. Sachacht An introduction to Islamic Law, Clarendtx Press, Oxtord 1982;
A.A.A. Fyzee, Outlines of Mohammetlsn Lsw, OUP, IJombay 19741D. Pearl and W. Menski
Muslim Famity Law (3"t. ed.) Sweet & Maxwell, London 1998 and K' Opoku The Law of
Mariage in Ghana - A study in Legal Pluralism. A-ll'red Metzner Verlag, Frankturt 1976.
 42

against the proposed marriage, but a minor has a

right tr: repudiate the union
years). under the Maliki
when he or she a[ains majlrity (i.e. puberty, at 15
;;;i;it%"rn rn aclult female inust be given in rnarriage by a male guarclia*'
law, there is a limit to
Islamic law iS polygamous in nature but unlike cusiomaly
is four wives but even within
the number of wives a man can marry" The limit
would themselves be barred
this limit a man may not marry two women who
it is not
t,n* n,u*ying each olher if one of them were a maie' in other worcls,
permittedtohaveinthesameunionwornenwh<rarerelatedwithinthe
may not marry
pr"rrllrit.a degrees by fosterage, consanguinity or affinity.
A man
of his sister and brother'
his female asc.nd"nis, his siier and feriale descenrlants
aunts of the ascendants' his
his paternal and maternal aunts ancl rhe sislers anrl
his wife, and his step-daughter
mother-inlaw and the other t'emale ascendanls of
and {h? Other f'emale descendanB of
his wife. Furthetmore' a man may not
a Inan {Ray mafry his first cousins
marry his fosler-mother or her daughter. tsut
and the half-brother' s haif-sister"

'l.here are two additional prohibitions relating "idtla" antldill'erence of

religion'
her "'idrlu" (period of
A Muslim may not manJ a woman who is i:bservi*g in
or div.ree' This is to ensure facility
wairing) resulting from eitiier widowhoocl a woman
cietermining paternity. A Muslirn
m9'1rnay marry a.Muslim woman or
Judaism or Christianity) but a
professing on* of-r'r,* revealed religions {e'g'
the Muslim men. Muslims,
Muslim woman must choose her husband'atong
menorwomen'cannotmarry..pagans,,(i.e.thosenr:lprofessingarevea}ed
religion).

4"4 f Registration of custornary marriages

for the registration of
parr ll of the Marriage Act 2iX)$ mak91 provisior
marriages' Such a registration
Customary, fofuufi*, findu and othlr
religious
the coming inio effect of lhe Act as
may be rnade of *;i*g;r contracied
befoie
a novelty introduced by lhe Acl as
well as those coniractei thereafter. This is
1l/ou foilnal p,*t*nl"t* for registering such
"s;;;;; ;3there
nrior to its inception; "o
provides that parties t. such mardages
shall ensure that
llllit"--r.i-
iclarv.0ntheschr:ols'seeFyzeeop,cit,atpp"?7-87.
1i. Auemprs were made by Trinal A<lministratio:t' lt.,,,-::,1]ple, lhe latiofwl^]1lat
proof ol the contracting of a cu$tomary malflage'
Administration, t{) givs iiomedocrimentary ' bul this was not backed bv" any statulory
i,., fie form ol a 'marriage certificate
sr.rch proof was
authorily.AproposalwasmarleuyLheParliamenlalyl,awRe{irrmCorlmittecinl9S9titi r'-cilaclmenl
bul this was nol impltmented unlil ths
such certificatinn nil.u*rn*ury ,nuriiog.,
 42
43

nion is registered within two months of contracting such a marriage.

aliki may apply ftrr the registration and must furnish the Registrar of
n. with prescribed information and any additionar information, which
may require in order to satisfy himself of the existence of the
rit to
ithin
rred ; :h" Registrar is satisfied of the existence of the rnarriage, he shall register the
not r"me bt' recording the identity of the spouses, the dale of the mariage, property
the - r-E-ch or in kind which a prospective spouse undertakes to give to the other
atry
-rr:'sF€ctive spouse's family in consideration of such marriage t'bogttdi') and any
her, :}.er particulars that may be prescribed. The Registrar shall then issue to the
his !3r1use.'s a certificate of registration, bearing the prescribed particulars. The
hter :;-iflcate shall constitute prima facie evidence of the existence of such a
not :;.iriase and the particulars contained in the certificate. Failure to provide
;ins *:tislactory evidence of the existenCe of the marriage will lead to the Registrar
=rusing registration.
on. S:ction 23 (4) of the Act provides that non registration of the relevant marriage
of -*-ithin the designated period will make the spouses guilty
cf an offence ancl
'in llal-'le to a fine not exceeding P800 or to imprisonment for a term not exceeding
tan :'ni vear, or troth. The rationale for this punitive measure will seem to be an
ta :tempt to ensure efficacy of the obligatory nature of the registration, Only time
IS, '*'ill tell whether or not this punitive measure will ensure adequate compliance
led ri'ith the registration process. However, the Act does not provicle the effect of
non-registration on the marriage. Would non-registration render the marriage
roid or voidable? It is submitted that in the event of the non-registration of the
:equisite marriage, the marriage should be considered voidable in view of the
iegal consequences of such designation. This submission is strengthenecl by the
of ract that marriages existing before the coming into effect of the Act were valid
)n rvithoul registration and it will be unnecessarily harsh on spouses of such
as marriages if the rnarriage is rendered void by non-registration.ls6
AS

)h .-'i rhe Marriage Act in ?000. See E.K. Qr"ransah "Proposals for the reforni of the law of
d.L :narriage in lJotswana - Some observations" U994) 8 Pula - Botswane Jaurnal of Aflican
Sturlies 3"7.
'i By section 27. Chiefs and lleacimen ol recrirti shall bc ex-officio district rcgistrars of
customarlr marriages in lheir respective areas of jurisdiction.
ai '" See E.K. Quansah "Updating famil;, law: Recent developments in Chana" (1987) 36
lnrernational and Comparathte Lgw Quarterll' 389 al p. 395 commcnting on Ghana's
] Customary Marriage and Divorce (Rcgistration) taw 198-5. Ses also E.K. euansah
lr "Proposals for the reforn of the law of man'iage in Botswana * some observations" (1994)
4
Pule- Botswzna Jaurnal o.f A{rican Sndies 3"7 .
 44

4.SCrrnversionofcustomarymarriageintoamarriageunderthe
Marriage Act
in this country gives rise to the possibility
The dual n&ture of the legal system
that at some point in timi the courts
will be called upon,to determine whether
to a gi't'cn situation'tt7 Such a possibility
one system of law * u"otft"t applies
exists under trr" rvrrrriug. itt *t"tr*t'y pu'iitt-*anied u:d:: :1tt:*:ll:1:^ti:ls
under the Act. A statutorv marrtage
permitted ,n *urry-.uJtr ott e, again Th'
Status than a customarv mairiage''sB
generally regarded u, t uuing a higher law and
legal conseq,r.rr""r-of suchldoubl"'
*uiriug;t *. not spelt out by the
proUatt" coi*"qurn""* of such a move'
Section
one is left to *pr"uto:t" *, * tt *
i: of the Marriage Act provides as follows: -
this Faftrse with a
,. (1) No person who has previously contracted a marriage r-llrder
*""G under.thls Parr or in acsordance wilh
person still tiving may contll:t " the previous
any customary, Muslim, Hintlu ," oi["r religious rites unless
by the senteRce of a court:
rnarriage f'u* Ut*n clissolved or annulled
Providedthatsuchpersonmayc0ntractamarriageinaccordancewithanycustomary,
wiih the person with whom the provious
Muslim, Hindu or other religious rites
marriage was contracted'

a marriagc in accordancc with any

(2) No person wlro has previously contracted
'act
Customary,Muslim,Hinduorotherreligiousriteswith.apersonstilliivingmay
conrracr un<Ier this ui'less thc previous marriage has been
"';;;i;t;
dissolved or unnufi*,l in accortlance
with the applicable-law , ,-.:
contracr u *u'dug" unier this Part with the person with
provided that such a pefson may
whom the
previous mariage was cnntracted.''

Theirrrportoftheseprovisionsjsclear.Theypermitcouplesmarriedunder
customafy, Muslim or'other religious
rii.r ,o *utry each other under the Act and
that: -
vice versa' Thus, it has been observed

rot Tbe Customary Law Act (Cap 16;01) provide rules tbt lhe resolution cl tht possible

conflicts.
,--, See the remarks <t1'Aht>agye l. in Dorca^t Makone v. Lesego Ntsiapane Cif iJ caSe l'iO'
F-j13,/1gg3, unre.zarted cited by Cae{ele Ag. J. in,415:/z/tyttk4:as'i v. Jrzkoba op' c'tL
'"' 'rhat is Par, I of the Ac:l dealing witl, civit, as apposed to customary, Muslim, Hindu and
other religious marriagcs.
 T1

45
{4

-irr Botsrvana an individual is mt forced to choose between the Common Law on

:;irnage: he is compstant to mary the same person under lroth systems bul the
Common La\N system exc\udes polgam;l'16o

The question that is likely to arise from this 'double' marriage is whether the
ility
subsequent marriage merely turns the early marriage into one of monogamy or
lher
one of potential polygamy as the case may be, or is the subsequent marriage to
Llity
are
i
be regarded ur n.* marriage? No express provision is made to resolve the
legal ionsequences of such conversion. An attempt will therefore be made to
:is an-swer the questions posed above by reference to the position in comparative
lhe jurisdictions.
and
ion
4.5.1 Is the second marriage a new marriage?

The answer to this question may be found in the provision for the celebration of
ha
the marriage under tn. act. The formulary to be followed in solemnising the
"ith
ous
marriage ai s"t out in s. 10 of the Act anticipates the second marriage as a new
marriage because no provision is made to acknowledge, in the relevant
Iry, circumitaqce, that the parties are-alreacly married under customary' Muslim,
cus Hindu or other religious tnarriage.'"' Each spouse is to declare as follows: -
.'l call uponthese persons here present to witness that I (name of bride or bridegroom)
rry do take (rrame of biide or bridegroom) to be my lawful wedded (husband or wife)'"
uy
)en However, the treatment of the marriage as new may give rise to difficult
questions.r62 Firstly, it may give the impression, albeit erroneous!.that a
ith customary, Muslim or other religious marriage does not create a status.r63 It is

,", A. Griffiths,'Legal Duality: Conflict or Concord in Botswana?" (1983) 2T.Iournal o.f

ler \frican Law llt) at p. 151. Cf Othlogile "ls custofitary marriage a'union'?" rtp. cit' at p' 65
nd note 12.
:61
C/section 9 of the Kenya Aliican Christian Marriage and Divorce Act (Cap' 151) which
ornui.l"1; that the officiating Minister or Registrar shall address the parlies as follows: "Do
I

understand ihat you AS anO you CD, have been heretofore married ta each r:lher by native
iaw and custom, and that you come here for the purposc of binding yoursclves to each othcr as
man and wife so long as both of you shall live?" The parties are then made to understand that
cnce they have taken each other as man and wife under the Ordinance, that marriage cannot
ce dissolved during their joint lives except by a valid iudgment of divorce.
:: wife
See W.C. Ekcw Daniels "Towards the integration of the laws relating to ltusband and
in Ghana" in Integration of Customary and Motlern Legal Systems in Afica (Atrican
o.
Publishing Co. & University of ll"e Press) 1964 at pp. 352, and 361 '
'-.-' See
p.n.H. Webb "Mistake as to the nature af marriage created by the cerernony" (1963)
)t ]lodern Law Review 86 and Kassim v. Kassim 11962] 3 Atl E'R' 426'
 46

implicit in s.22 of the Marriage Act that these marriages create a status as that
seCtion provides that nothing stated in Part II of the Act shall be taken as in any
manner affecting or casting doubts upon the validity of any Customary, Muslim,
Hindu or other religious marriages. Secondly, suppose that a court dissolves the
marriage under the Act, will the decree affect the marriage celebrated under
Customary, Muslim or any other religious rites? An English High Court's
decision involving a Nigerian couple in Ohochuht v. Ohochukutoo seems to
suggest that in such a case two decrees are necessary to terminate the two
mirriages. Expert evidence in the case was to the effect that had lhe case been
tried in Nigeria, a decree dissolving the monogamous marriage will also dissolve
the pre-existing customary maniage. lt must be pointed out however that at the
time the decision was given, Engliglr courts had no jurisdiction to entertain suit
relating to polygamous marriages.'nt As will be shown below, the view taken by
the English court in the case may have beenper incuriam.

4,5,2 Does the second marriage under the Act convert the existing
Customary or Muslim marriage into a monogamous marriage?

The answer to this question can be given in the affirmative for as opined by a
learned writerl66 :

"1-he phrase 'to conved' have many meanings.lr'7 'To converto does not necessarily
fI mean to make new. In the law of property a covenant not to convert a dwelling-house
t inrg a shop is breached by the making of a structural conversion or by the exposing of
X*
*F goo<is fgr sale. In other words, it means that premises may be conveded either tly user,
'{
$ or by an alteration of structure. Similarly, when we speak of 'conversion' of marriage in
I this context, it must be construed to mean that the pailies to the maniage are to be
jt
I regarded as husband and wife even for the purposes of 'marriage' under the
$ Ordinance.i6s The only changc that comes about as a result of the Ordinance marriage is
v a change of user, a structural alteration of the original union. In this sense, the status of
f
t
the customary marriage becomes merged in the wider status offered by the Ordinance
i
ri
marriage. The matrimonial incidents of the Ordinance marriage also supersede those of
!l
the customary marriage."

''" it96o1 1Ail E.R.253.

"" See the English decision of Sowa v. Sowa [1961] 1 Ail E.R. 687. I]ut now hy the
Matrimonial Proceedings (Polygamous Marriages) Act L972 English courts now have limited
juriscliction lo entertain suits relating to polygamous marriages'
"tn Eko* Daniels op. cit. at
pp.361-362,
tt't S*. Stroud'.s Juelicial Dictionary 5'r' ed. by J.S. James, I-crndon, Sweet & Maxwell, 1986.
l{'*
Referring to the Ghana Marriage Ordinance (Cap 127) which is similar lo the Botswana
Act.
 46 +/

s that This opinion is suppcrted somewhatby Ohochuku's case the facts of which were
in any --:at'ihe partres wele marned accor&rngio ltre rel*van\.
eusioxrat5 \avr inNigerra.
luslim, The marriage was potentiall) pDl)gamors in that the husband could lawfuIy
t es fhg ffiaITv an}ther w}tnan during ifs subsisfence. In 195A" the husband went t<>
under Eng.land, where in January 1953, the wife joined him' In July 1953, they we*t
lourt's -firough a monogamous marriage in kndon to enatrle the wife to get a marriage
:ms to certificate, which she could use tor practical purposes. Subsequently, the wife
Le fwo c:etitioned the English court for a divorce on the ground of cruelty by the
: been h.usband. In granting the divorce, emphasis was placed on the fact that the
Ssolve cecree dissolved the English marriage only. The court was satisfied that it had
at the no jurisdiction to dissolve the polygamous marriage even though it accepted
in suit erpert evidence on Nigerian l,aw to the effect that if such a decree was gtanted
ien by in ?r{igeria it would have served to dissolve the customary marriage as well. The
court concluded on this point that the issue as to whether the customary marriage
t ill also be dissolved by the decree dissolving the English marriage was not
isting before it.

However it may be said that the decision was givenper incuriam for the English
lbya Court of Appeal had decided earlier in Tlzynne v. Thynnet6e that a clecree of
divorce dissolves the marriage status and not the marriage ceremony. Thus in
rhat case lhe Appeal Court held that where two marriage ceremonies had been
ssarily celebrated between the same parties on different dates a decree of divorce
-housc santed in respect of the second marriage also dissolved the first marriage
;ing of ceremony. It is respectively submitted that the same legal consequences should
Y USer, t^low from the utilisation of the provisions of s. 13 (2) of the Act.
iage in
rlobe
Section 13 (1) of the Act also contemplates a conversion from a monogamous
er the
marriage to a customary marriage. The tendency among lhe general population
iage is
atus of
to accord monogamous marriages a higher recognition than customary
,inance marriagesrT0 will make the use of this provision a rarity. Besides the usual way
we af' in which the two marriages intertwine is that couples perform the customary
marriage first before going through the statutory ceremony and not the other way
round.

rv the
mited

"'" lisS-S1 P.772. See also Ekow Daniels op. cit at p. 363 and Phillips and Morris Marriage
986. Laws in Africa O.U.Y., Oxford, 1971 p. t79.
irltana '-'' See the dictunt of Abcagye !. in Dorcas Makone v. Lesego Ntsicpane MC F5 l3ll993
unreporled butcited by GaefeleAg.J. in Mphoyakgosiv.Jakoha op. cit al p. 6fi7.
 48

1.6 Customary marriage and property rights

There is no community of property between the husband and the wife.rTr'feny

property which the spouse po$sesses before the marriage, at the time of the
marriage or which they acquire during the subsistence of the marriage is the
individual property of the spouse concemed. However. the wife's property is
traditionally subject to the husband's control and management although there are
indications that this is changing.lT2 Women nowadays deal with their property
freely without seeking the consent of their husbands. According to Roberts,
whether this is due to the fact that women have been freed from the shackles of
their husbands or whether their husbands have failed to exercise control over
their wives' property, is not clear.

No express power is given by the Customary Courts Act to customary courts for
the determination of property rights on divorce. However, such a power may be
inherent in the jurisdiction conf'erred on such courls by section 12 (b) of the Act
to deal with divorce and other matrimonial causes in accordance with customary
law. It would be expected that determination of property rights will be ancillary
to the exercise of this jurisdiction. Indeed Roberts, in the discussion of
Ngwaketse customary marriage, has indicated that division of property is part of
the ancillary reliefs obtainable in matrimonial proceedings. He states that:

"Apa( from any compensalir:n which may be awarded to either spoose on divorce, tlre
r7r
court is also nonnally called upon to divide the household property."

The customary principles for the determination of the property rights on divorce
varies from tribe to tribe but cannot be properly articulated because o.f,.Poor
record keeping in these courts. However, from the findings of researchers' '" it is
clear that a woman is given very little of the property which is not derived from
her own descent goup. It is assumed that she could rely on her descent group
for maintenance. The important considerations are the fault of the respective
parties and the necessity of maintaining the children. These considerations were
reiterated in Leswape v. Leswupe"t where the High Court dismissed the appeal

't' For a historical perspective of womenos property rights in Botswana, see B Mor"ton "The
evolution ol'women's property rights in colonial Botswana, 1890-1966" (1998) 12 Pula:
Botswana Journal of A{rican Stud.ies 5.
'tt See Roberts op. cit. at p. 41.
r73
Robrrts r:p. cit. aL p. 224.
't* See Roberts op. cit. at p.50-5 I and A. Griffiths "Legal dualily: Conl'lict or concord in
Botswana?" (1983) 27 Journal of Afi"icun Law 150at pp. 152-153.
'tt J19xr1B.L.R.73.
r8
49

of the husband against the revision by the District Commissioner of the

customarv coud's division of their property. The court
1\' applied the principle
that an appellate court will nct disagree, as a general rule,
Ie wiih the judgrneniof
an inferior court unless satisfied that it was clearly wrong.
1e In the instantiase, the
court could not fault the District Commissioner's apflication
is of the relevant
custornary law.
re
r)'
The application of customary principles to the division of property
s. on divorce
usually works to the detriment of wives as they tencl to be biased
)f in favour of
:r husbands. Aggrieved wives therefore, invariably turn to the High
court for
redress. ln Moisakamo v. Moisakamo (z),,u, the High court dissolved
a
marriage contracted the Marriage.Act, the proprietary consequence of
lr
which was governed"urderby customary raw.'7t me divi.sion of the matrimonial
property was referred to the Custcmary Court of the area where
e the parties
,t resided.rTB The wife being dissatisfied with the division by the
Customary Coufi,
applied to the High Court for relief. A preliminary objection to rhe jurisdiction
!' oi
the High court to hear a case in which the matrimonial property ii governed
!' by
f customary was overruled. One of the reasons given for-the-rejection
of thl
f submission was the large sum of money involved, which exceeded
the
jurisdiction of the customary court concerned. Furthermore,
the court
expressed the view that since it granted the divorce, the
division of the
matrimonial property was ancillary to those proceedings and
so fell within its
jurisdiction. consequently, the court used iis power inder
section 13 of the
Matrimonial causes Act to determine, according to Ngwaketse customary
law,
the mutual property rights of the spouses. The said betermination
was much
fairer than that of the customary court.lTe Hayfron-Benjamin c.J
observe*l*-

]]iitwtlr B.L.R. r26.

"' See section 7 Married persons property Act 1970.
't* Il
has become conventional in such cases tbr rhe High
Court to rel'er the division of the
property to the local Customary Courl presumably for tlt.
,*a*nn that such a court is tretter
suited ro deal wirh rhe mafter. ln L*itlho v. Lesatlha MC No. zzTltgg3 (2s May lgvg)
unreported Dibotelo J. abandoncd the idea ol'referring rhe distriburion
of lhe ioint estaie ro thJ
Custcrmary Ctlurl on realizing that the estate consisied of, inter
alia, mortgage bonds, a
concept unknown to customary law. ln Metwinyane v.
Metswinyane Jzoo+1 r B.L.R. 47
(CA) the Ccurt of Appeal held that such a referral dicl
not cr:nstitute delegation r:f the powers
of lhc High Court to the ciesignaled Customary C.ourt. Conseqo.n*f, a decisicn
of such a
*::-.!:lt.subic,e tLo appeal direcrly to rhe Courr of Appeal.
ii]r:t
"'Sce Il9frlll IJ.L.R. 126atpp.'152-l-53. Seealso
AiiriesKnngooyuiv.commissionerof
cusbmary Crsurts & ors' Misca. No. F1611996 (26 Septemo.r"iggo ) unreportetl where
Cotran J' opined. at p. lo of the tt'anscript, thaf under Tswana
custonary law,,where there is
only-one wil'e (i'e' cne house) u:.19t., lhe properry acquirecl
during the marriagc is divi6cd
roughly equally on divorce, the children, if any, getting a podion.,,
 50

..Custom of course plays an important role in how people choose Lo live, trut changing
social and economic conditions affect and mould customs."
"Too much reliance on customary practices is likely to lead the coufi into making
findings as to how the parties should have ordered their lives and nol as to how their
lives were actually ordered. The lacls of each case must be ascertained. It is only when
these facts have been ascertained, and how the matrimonial property was acquired has
been cletcrminecl, that the court applies the rules of customary law in determining which
propeffy should be allocated to which spouse."

Itcan be inferred from the above dicta that changes occurring in contemporary
society should be taken into account in assessing the social utility of customary
rules. As the court rightly observed,
o'a
ruis that may have been just and suitable
in a subsistence farming community may work grave hardship and injustice in a
16r It is therefore imporlant that in applying
commercial farming economy.'"
customary law, the social reality must be brought to bear in its application. After
all, lhe court is enjoined to apply customary law in so far as it is not contrary to
morality, humanity or natural justice.'o-

The above conclusion seems to be borne out by recent research conducted by

Radigeng among the Kgatla of Mochudi.183 He asserts that contemporary rules
of property distribution on divorce have changed from the rules discussed by
Schapira in the 1940s and Roberts in the 1970s. The factors that determine the
proportion of a spouse's share of matrimonial properly on divorce have shifted
from those based on the sexual division of labour and the question of source of
property to an equal share based on the understanding that marriage entails a
iommitment by both spouses to accumulate for their common interest and
benefit.lsa From his analysis of the case law of the customary court of Mochudi
and from interviews with chiefs he summarised the position of the law as
follows:

"Where the parties to a marriage accumulate property together such property constitutes their
jr:int estate excepr property that the parties had belbre the maniage. On divorce such property is
to be shared equally."'t'

t*"
At pp. 139 antl 140.
'8'At p. 147.
'n'Sse seclion 2 Cuslamary Courts Act 1968.
'*t See G.O. RadigengCustamary Law and Centler Equality: The Legal Status of Women in
Botswana, DPhil Thesis, University of Oxford (2004) (Unpublished).
'*t See p.212 of the Thesis.
'*t At p. 215 of the Thesis.
 51
!0

\\ihiie welcoming this 'shift' from the Traditional rule that in essence looked at
ng rhe source of the property, he cautioned that this enhances equality in so tar as it
coes not seek to locate the respective contributions of the spouses. Assessing the
ng individual contribution of the spouses would attach gteater importance to the role
eir of one spouse cver the other thus introducing discrimination on grorinds of
ren
sender role prescription. He added that it is practically impossible to compare
las
the roles played by a wife as a homemaker and ttrat of the husband as a
ich "breadwinneri'. In his view, the courts should not make assumptions or
speculate about the role that an individual can be expected to play in the family
IIy ai family life is subjective.ls6
ry
rle
na
mg
ter
to

by
t^^
ItrS
by
the
ied
of
SA
md
udi
AS

heir
xis

nin

Se e p. 216 of Lhe The:is.

 52

CHAPTER FIYE

DISSOLUTION OF MARRIAGE

ov Jissolution * -"i i+ of thi Matrlrnonial Causes

Amarriagecanbedissolvedinoneoffourways,nayllv,.!1)bydeathofone
of the spouses; (z)
*o -*. ''
aiuuorution or marriage);
(3) bv divorce;
Act 19?3 ipr*uu*pri;;;;;rh marrrage'
Gl by annulment of a voidable
""i
5.1 Death of a sPouse

as an
s1{viving spouse og;;; dl"his or her previous rights
DeathofeitherpartytoaStatutofy.marriage.automaticallyterminatesthe
marriage and the law, the death of a husband
person.,*B However, Unorrlult"**v
unmarried
the marriage.l;;;gement {'levirate') whereby
does not per sedissolve
and has sexual relations
with one
ii'ifr, ,*rri*oniul ho*,
the wiriow ,"*uinu of the deceased" is
of the dead husbanilr'l.wl",,rru*rry'l1i.',;"u-t.;$er i: children for the
nut into effect' The object 9: ihil ""tt*ii'' ':: ':uite the marriage" A
si*ii;t],'a-dre,s death riay not terminate in her
leceased.,sn
ot *."0" i;;; otutiut of hers'to so and live the
sororate u*un*"''!"i'il-' This usuallv tupptnt when
taking her place J;;;:
marrimonial home, children're(' The extent to
wife dies .rt'art'l l''of;Jl;'"ing-"ttv-you"g societies
on-in contemporarli customary
which these praci"., -* ,i*i "urriJo
in got.*una is a tnattcr of
conjecture'

dissolution of marriage
5.2 Presumption of death and

or dead, rii-'p"..iule for the.other spousc to. apply

WhenaSpousedisappearsincircumstancssinwhichitisdifficulttoascertain
whether he or she i.i uriu. applicatton
for him ft-J* be declarcd dead' This
lo ora.,
to the High Couri "t cuorr* R"t 1973. other relatives of the
may be made uno* ir" Iururri*oniur

';-'* 'il;l,m,' x:;,:jl 1i;,ti;" ::i,, fi :i'.

n

[ !ii'ili1,;1,, X T:
oi"u o"'i"g the currencv a ff :",,1
rure
'lrr tcrminatcs the
:I
ni.ri: ror
;:-S,K:fikif'f"trt't'J':i:y::i
the dcarh does'nol rerminatc the *.rr**l""tit'
itit itt* t"lcriii that
of dea'lh of a
divorce,
nu,,iug" u:," ""T:*:;l;*,ffi;lfie[,",11#;:l;4*:rion
in divorce srtuallon"',?;'l:;':.n'o"i*rr= op'
a pp.53
53 and E9'
Roberts oo. t'it.at pp'
spouse L'it' at an
,^,,
see Schapcra ,0. .,,1;;:'r"oi-iii tto
,rt'
lbid,
52 53

said spouse or his or her creditors may apply for such an order under the
common law.

5.2.f The common law position

)ne The Roman-Dutch law was unclear as to how long a person must be missing
SES
or absent from his or her family before an order for presumption of death can
ce; be made. At some point in the development of the legal principles with regard
ro this presumption, the South African courts followed the English case law on
the point by which an order f-or presumption of death of a person was granted
aftei an absence of 7 years.rer In Re Beagleholerer this 7-year fixed period
rvas abandoned in favour of no fixed period. lnnes CJ said:'e3
lhe
an "l am satisfied that it was not a hard and fast rule of the Roman-Dutch law that the
Lnd court was bound to presume death after the lapse of any fixed period of years. Some
,by -
writers did hold that view. And various terms wcre suggcsted seven years, nine
Ine vears, fifteen years, and so on. But the weight of authority seems to have been in
is favour of leaving the question itt each case to the discretion of the judge."

'he
A Thus ths court will take into account all the circumstances of the case,
]er including the length of the person's absence, his age, and his trade/occupation
:he in deciding whether or not to presume him dead. In such a case any interested
to party, for example, his creditor or his heirs may approach the court firr an
ies order of presumption of death. fle-applica-nt must prove on the balance of
probabiliiies thal the missing person is dead.rea

5.2.2 Statutory position

un Section 24 (l) of the Matrimonial Causes Act 1973 provides that a married
tly person who alleges that reasonable grounds exist for supposing that the other
on
he ler
Two Bnglish Acts, The Bigamy Act, 1604 and the Cestui Que Vie Act, 1666, provided that
if nolhing was hcard of a person lbr 7 years, lhe presumption that he was still alive f'ell away"
. Subsequent t() thcse Acts a general rule developed that a presumption oI death arisos after 7
t vears absence. Scc Chard v. Chard L19551 3 Al1E.R. 721.
'ut 1908 T.s. 49.
)8)
ior
"" At pp. 5l-52. it is submitted that in terms of s.2a Q) ol the Matrimonial Causes Act 1973,
*'hich provides for a seven year period where a parly to a statutory marriage is seeking a
tie presumption of death order, the $even year period may still be relevant under the common law
fa of Bolswana.'l-his view will prevent disparity belween the statutory law and common law on
:he samc issue.
'o' See Ex perte Parker 1947 (3) S.A. 2{tS {C), Ex parte Estate Russeil 192{l W.L.D. 118, -6x
p{trfe Verster 1956 (1) S.A. 409 (C) and Ex parte Pieters 1993 (3) S.A. 379 (D).
 54

aqllV to the High Cou* to have

it presumed
party to the marriage is dea! rnlf
parryjr-O.uA and"to"hav*'ir,* *utiiage dissolved' In deciding
that the cther court to accept
whether to grant tf'* o'Ot' or
not' sectio * 2a Q) effipowers the
to the
until the contrary i* proo"o, tr't* i*t ih"t tht olher party
evidence,
frtm the plaintiff for a period of 7
as years
marriage has been ;;;;;;;11;absent other party has
and thar the plaintiff r*oro"io Lelieve that the
or more !1r.no following the
wirhin;fo ,i*". This subsection will seem to be
been living abooe and consequently'
the
English common r**"porr*ption,ulluJ"J;o ln Chard v' C'hu'rdtes it was
Engtish case law rfri p"i"t may U*'rJ*uunt '
""
heltlthatinordertbrtheapplicanttosucceed,itmustbeprovedthat:

{i)Thetearepersi]nswhowouldbelikelytohaveheardfromhimduringthat
period;
him; and
(ii) Those persons have not heard from the circumstances'
(iii) All inquiri;;t;- been made appropriate to
due

Whilstthecourtwillpresumethedealhofapersoniftheabovecircumstances
however not presume that
death
to iti satisfaction, it will
are establistreo
in time within the 7 years'r"6
occurrecl at a particular point

IntermsofsectianSoftheMatrimonialCausesAc|thebasisforthecourl's and clissolution of

jurisdiction ,o r'*u' un u"tion to' tf"'i'***pu::'-19--10 it is
is the ,;;;;;t;se for di";;;; orludicial separation' That is'
marriage a wife, continuous
based on rhe d";;; of
the ptaintiti or in *1 c,11of the
t i" Bot***"" zu p*rlod of three years immediately preceding a
residence -i" " p*tpot?:.of lh* section whether
dare of ttre actton. o.i.r*lnlng;rlrr"
in Botswanu, f,*i fr*t"nO *ttutt be treated as h'aving died
wife was riomiciled
immediatelyafterthela.sto."*,iooonwnictrshekneworhadreasonto
;;ti-;. him to be living're'
Theprovisionsofsection24af.theMatrimonialCausesActareclearly
u11i .: no interested party
designed tor rt *"t oi marrieil'fersons Yh
It is therefore submitted
"n-iii can utilise-ttio*, prouisions.
aparr from th-J;;;;;, example, creditors and heirs'
may
that persons othei than marri*o
p*tron*,}ir
resort tc rhe sommon law posilion
in appropriate circumstances

t"i J
t'it. sul)ru. al p' 128 pcr
Sachs
oo. ^.
i: tj',i.n,lf:
woman can
2004 under which a married
il:iilJi-Jfht;hi !i,"'.1"*'
*lt]-no* t"noer this pravision redundant'
acquirc a fiepafate a.*i"ir- ir,,*ir*, husband
 55
54

rmed 5.3 Divorce

,ding
:cept 5.3.1 Courts having jurisdiction over customary marriages
l the
'ears In terms of sections 11, tr3 (b) and 15 of the Customary Courts Act 1968
has Customxy Courts have jurisdiction to hear suits.whereby a divorce is sought of
: the a customary maniage. in Mafokate v. Mafakatel"B the High Court had to decide
the whether it had jurisdiction, at first instance, to entertai.l an action to dissolve a
was marriage contracted under customary law. The courtlee held that in terms of s'
95 (1t of the Constitution, the court has unlimited jurisdiction to hear and
determine any matter, criminal or civil, without any constraint on its jurisdictir:n.
that Whilsf acknowledging that s. 3 of the Matrimonial Causes Act makes the
provisions of that Act inapplicable to customary marriages, the court expressed
ihe view that this did not mean the High Court could not hear and determine
matters relating to customary marriages under any appropriate law! The section
was therefore held not to be an impediment to the court exercising jurisdiction
nces over customary marriages. Furthermore, the court acknowledged the fact that s.
leath 4 of the Matrimonial Causes Act curtailed its jurisdiction to grant divorces in any
polygamous mariages but hetd that this was not the case in the instant case. The
iaw applicable was customary law and this would be applied try the High Court
urt's in proceedings involving customary marriages as s. 5 of the Common Law and
rn of Customary Law Act 196920t) enjoins the courts of Botswana to apply customary
lt ls law in all cases and proceedings where customary law is the proper law'
uous However, it was the view of the court that the dissolution of customary
marriages and other matters ancillary thereto were matters eminently suited to be
I the
ltl cL
brought before Customary Courts than the High Court' Proceedings at the
died Cust-mary Courts would generally be heard faster and are less expensive'
nto Besides, proceedings at the appropriate Customary Court would mean that any
requisite witnesses would not have to travel far. Based r:n all lhese facto$, the
court concluded that a Customary Court would be the appropriate court to hear
:arly the action for divorce, subject to the right of appeal ultimately to the High Court
)arty by any party that may be dissatisfied with the decision cf the relevant Customary
iitted Court.
may

"'n J2ooo1 2 B.L.R, 430.

""' A panel of three judges, Nganunu CJ, Lisimba
J. and Ki$y J', heard lhe case'
'u" l.lo* styleri Customary l,aw Act 1969 (2002 Rev').
 56

5.3.2 Courts having jurisdiction over statutory marriage

5 of the Matrimonial Causes Act'1973,

By the combined effect of sections 2^?'.'d
jurisdiction ir, *utr"iirJn;;;;;"."i is conf"rred
on the High Court and
*esignared *uuoroi*ui*"';;;;t'it
While the former court's jurisdiction is
By subsections 5(3), (4) and
unlimited, ,h. luu., Iurt has lirnited iuri*ai.tion.
(5)oftheAct,asut,ordinatematrimonialcourtdoesnothavejurisdictionto
anv marriage^or divorce. It also
does
pronounce on the orherwise
";ii;;;, 3f
of presumption of death and dissolution
not have jurisdiction t., *ut.. an ordgr
of
parties
marriage. fn" is further restricted to cases where both
"ouri'rluri*Ol"tionjurisdiction or where one of the parties is not so
are ordinarily reside*'*ittln its to
either personally or on his behalf,
resident, that party has filed his consent, of
submit ro the jurisdiction of the court.
in the alsence of the establishment
High
causes are invariably heard by the
such subordinate coufts, matrimonial
Court.

5.3.3 Bases for assumption ofjurisdiction

bases for
By the provision of section 7 of the Act' the party'1"
:t:1Tlli":"::
in Botswana or rn
Coun are the domicile of either
;u'risOi"tion by the rtigh for
the case of an action brought by a
wife, her continuous teiid"nce in Botswana
These
preceding the institution of the action'
a period of three years imftediately mtldified by
of asLrtainment have been
bases which may po** *o*, protriems bases
?004. A brief discussion of the various
I the Abolition of I\iarital Power Act
fo, tfr. assumption of jurisdiction will be
made below'

5.3.4 Domicile
o'an idea of 1aw" 203 which enables a person to be
The concept of domicile is
the purposes of determining his
identified with a furtcotu,' legal system for
personal law.

efTect of sections 4, 13.

,.,, .Matrimonial cause, is not defined by the Act but by the combined
to mean actions for divorce, nulliry of
marriage'
17,22.?4,25,76,2i and?g. this may be taken High court Rules'
see ord.l.r-3
jutiicial separation unJunrliury maiters relating thereto.
*oy' ty t'?tit:^. in he Gazette' and on the
?02
By section s otl tt',e aci *re Presideni
recommendarion o1 the chief Justice, uppoln,
uni'lujirint ofticer appointed by the Judicial
calteO a-subo'Cinutt matrimonial court'
for the exercise oi
Service Cclmmission to holtl a court,
thejurisdictionantlpt-lwersundertheAct.Nosuchjudicialofficerhasbeenappelintedsinccthe
coming intcl eflecl ol the Act' n r1 o^ a.!iv'
L r\i,, 1n?
307 per Westburv anc
I nrr{ westbury i
L'R' ^o" Lord
2ut
sec rhe English casc c{Bell v' Kennedy [1886] I
thesouthAliicancaseofcunnv'Gunnl9lar'r.o.423al42TperlnnesC.J.Foradetaileij
 56
57

The law of domicile wields a strong influence on such matters as a person's

status, capacity to marry, divorce and nullity of marriage, the mutual rights of
- 1973, and duties of husband and wifu and succession to movable property. The law of
rt and domicile is based on the common law which categorises it into three kinds,
ion is namely, (1) domicile of origin, which is given by law to a child when he is born,
4) and (2) domicile of choice, which is acquired by any independent person for himself
lion to by a cornbination of residence and intention; and (3) domicile of dependency"
o does rvhich is acquired by a dependent person such as a married woman or dependent
tion of children. At any given time" a person's domicile will be one of these.
parties
not s0 One of the underlying principles of lhe law of domicile is the presumption that
alf, to an existing domicile continues until it is proved that a new one has been
ent of acquired. Most of the cases that have come before the courts have involved the
High questicrn whether the proposiras (the person whose rights/obligations are in
issue) has changecl his existing domicile to that of Botswana to enable the court
to have jurisdiction over his case. This is especially so where the question
involves a change of domicile of origin to that of dornicile of choice.20o Until
quite recently, it used to be the law that a married woman automatically takes thc
on of domicile of her husband and retains it throughout the marriage.2os A change of
.orin the husband's domicile also automatically atTects the wife. As mentioned earlier,
na for this position has now been changed.306
Ihese
ed by 5.3.5 Change cf domicile
bases -
0 Two factors must coincide befirre the law can recognise a change of domicile.
These are (1) residence in a particular place and (2) an intention to remain there
permanently or indefinitely. However, it is_very difficult to keep these two
requirernents in watertight compartments."' Residence for lhe purpose of
to be domicile means very little more than a physical presence in a country and the
g his intention must not be tn reside in such a country for a fixed period or for a
parlicular purpose but rather tbr an indefinite or perrnanent period. The

.1. 13,
riage,
look at the concept, see standard works on Conflict of Laws. On the state ol lhe law of domicile
in Botswatra, see J. Kiggundu "'l'he law of domicile in Botswana: Thc need forrefbrm" (f 990)
r the
African Journal of Intcrnational anc{. C<tmparqtive Law 626.
Cicial
'"u Scc Lhc dictum ol scarman J in the English Case of Re Fuld's Estate (N<t.31 [ig6SlP. 675
se o1'
at p. 6t{6 quoted below.
:e the t"-
See tlicrum of Agirda C.J i* Egner v. Egner {lg7412 U.L.R. 5 and the English case of Lord
Atlvrcuttv..luffrey [921] lA.C. 146. HI .
; and
'"'' Scc notc li2 srrpr',r.
ailed t"t
See Morris The Conflkt of Laws 3"r ed. Stevens, London, I 9ll4 ar pp. I g-20.
 58

difliculty entailed in ascertai$sg this intention has given rise to sorne startling
judicial iecisions in England.208

what the case law proves is that the burden of proof of change of domicile is.a
heavy one, ln Scsir v. Scarf}q the plaintiff had an English domicile
of origin
contlact of employmenl' The
and hael come to Botswana in 1970 on a five-year
wife left the two children of the marriage with him and returned to England'
to come to
There was evidence that when the plaintiff left the United Kingdom
which was
Botswana he had solcl his house and furniture. In his passport,
residence and
renewed in 1971, he gave Botswana as his country of permanent
g;;* or"f evidence inlourt that he had formed a $ettled intention remaining in
of
balance of
Botswana permanently. On these facts, the court held that on a
probabilities, he had proved that he had acquired a domicile of choice in
botswana. Relying on English and South African authorities, Rooney, A"C'J'
said: -

in which the
"From these authorities I would conciude that where a party to proceedings
issue of clornicile is a factor, gives evidence in positive and
*ncquivocal tcrrns in regard
ro his atrandonment of his doiicile of origin antl intention to acquire a new d'micile, his
evitlence sh'uld not be rejected on the sole ground that he has strong molive fcrr,giving
witness, and there is nothing in
it, provided lhat he upp*ui. to thc court to be a oredible
his conducf which is inconsistent with his testimony'" ''n

@ ln Jeffreys v. Jeffreyszll the same judge reiterated the above dictum when he

said: -

''That thc plaintilf has given evirlence on oath as to his pl*ent stale of mind
is an
iook to all the
important factor to be co"nsidered, but it is not conclusive. This courl musl
it is to accept such evirlence, bcaring in
circumstances belbre it can he satisfied that saf'e
the court he may more easily
mind rhat while thc plaintiff may havs no clssire tt: deceive
decerve hllnsell.'

.u* v. Att. General 119041 A.tl.?S? where 47 years residence in England

was lield tr:
See Winans
was arrived ai in
be insufficient 1o acquire a oc,miciie of choicc thcre. A similar dccisitln
Ramsay v. I'iverpottl Royal InJirmary [1930] A'C' 588'
lil tfSfll f g.f-.n. aq. SLe A.J.C.M. -Sanders, "1'he expatriate contract worker and the
u"quioitiun of a domicilo of choice - The Botswana situation"
(1933) 100 Sorr/r African Law
.lournol'/A5-117 .
,x' Ibid. ar p. 46. See Mutem{}chimwe v. The Law Society of Botswaua 12002] I B'L'R' 50 and
Naude v. Naude {200?1 1 B.L.R. 30.
:" J:io73i I n.L.R.42.
"' Ibid. at p. 43.
 58 59

rtling In that case the plaintiff was a qualified teacher from England who was on a two-
year coniract to teach at a school at Orapa. He stated in evidence that he had lost
contact wilh his people in England and was interested in working in a developing
eisa country. The court held that the evidence of his state of mind was not conclusive
rrigin of a change of domicile although it was an important factor to be taken into
The account, and that taking all the circumstances into account he had failed to
:land. satisty the court that he had formed that settled intention to remain in Botswana
ne to which was a prerequisite to the acquisition of a domicile of choice. The court
was accordingly refused to assume jurisdicfion. Again in Dance v. Dance,2'3 the
l and court held that the circumstances of the case did not support an intention to
ng in remain in Botswana for an indefinite period necessitating the acquisition of a
ce of domicile of choice in the country. In that case, the plaintiff, who was born in
ce in England" had ernigrated with his parents to Kenya at the age of 3. On
t.c.J. attainment of his majority he retained his status as a United Kingdom citizen.
He came to Botswana on a two-year contract, which he renewed for a further
period of two years. He gave evidence that he had the intention of remaining
:h the permanently in llotswana. However, the evidence revealed that his coming to
egard
Botswana was fortuitous in that on leaving Kenya he had the intention of going
le, his
to South Africa. The deciding factor, in the court's view, was the plaintiff's
riving
ing in comparative youth and the burden of caring for two small children. The court
put its view thu.$:

"The most important factcrtto be considered in the present case is the comparative youth
:n he-
ol the plaintiff and thal he is presently burdened with the sole upbringing of lwo very
small children. He is still at that stagc in lifc where hc has cvery inducement to scek
improvement of his position in whatever country has that most to offer him and his
is an
children. When he originally contemplated leaving Kenya, hc considered going to South
dl lhe Aliica. I1 was only the forluiti:us circumstance that his employers had interest in
ing in Botswana that led him to this country. His parents are in South Africa and it appears to
easily me unlikely thal ail thesc circumstances supporl the presence of a considercd intention tr:
remain in lSotswana rvhich is necessary ibr the establishment of a domicile of choice in
2l4
this country."

rrld lo However on an appealzts, the Court of Appeal held that lhe c<lurt a quo
aL in
misdirected itself and thereby disabled itself from giving due heed to the
d the appellant's prima facie tully credible evidence and therefore ruled that the
z Lew appellant has proved a domicile of choice in Botswana.

i0 and

ilets)2 il.r-.R.39.
lbid. atp. 41.
See Dancc t:. Dance (2) 119761ts.L.R. 43.
 60

was born in South

1nKenyon v. Kenyon anrl JenkinsSl6 the plaintiff in that case
Africa. He had lived in Zimbabwe "na zu*uia before coming to work in
as a citizen of the
Botswana. He held a British passport in which he is described
and painted an
united Kingdom. He had a t-n-year contract with Air Botswana
establishment when giving
exaggerateJ picture of himself and his duties at the
were many factors that
evidence. The court however was not impressed as there
will cut short his stay in this country. It was the court's view that:
.,The burden of proof of an intention to sutrstitute a new domicile tbr the domicile of
In my view, the evidcncc to
origin is on the person asserting it -in this case, the plaintitf.
in an
,"p],"" an alleged intention io change dermicile must be very clear, especially In the Estate
of probahilities:
unclefended case like this one . tsut it must be on a balance
(Aro.-?) 2 W.L.R. 717 at726. The person whose change of
af Futd (deceased) [1966]
of such a
iomicilc is in qucstion is undoubtedly a compelent witness but the evidence
oI in the one before
;;;;;;;G;.iriiv *rr"* he is intercsted in the result the case, as
I Nl
*", *u., tre scrutinised very caretully (see cruicks hanks v. craickshanks [1957]
g.n. Sgg af p.993.) The infention to'be proved is an intention to reside p0rmanently or
never ttl
lbr an unlimitetl time in the country of choice. It deies not include an intention217
change the new clomicile (see Re Flynn v. Flynn [1968] 1
All E.R.49 at 58)'"

The above cases reveal the following general principles:

The burden of proof of a change of domiciie is an onerous one and

the
1.
(j\
pr{}positus must satisfy the court, with credible evidence, that such change had
i;;; ;i;.r.t'- The eiement of change, which has posecl difficulty choice'of proof, is
a domicile of The
the ani.mus mnnendi requirement for the acquisition of
is whether the
test of the animus manindi,which has been adopted by the courts,
in the
proposittts has the intention to reside permanently or for an unlirnited time
which, however, need not include an intention never to leave Botswana'
"o.*try,
The pioof required is one.on a balance of probabilities. At the end
of the day:

,Tw. evidence of
things are clear tirst that unless the iuclicial c<;nscience is satisfied by
change, thJdomicile of origin persists; and sccondly, that the acquisition
oI a d'micile
lightly inferred from slight indications or casual
of choice110is a serious matrel not to be
woros.

t"'
1r9741 I B.L.R.2.
2t' Ibitl. at p. 4.
,,* See A.J.G.M. Sanders "'l'he expatriaf.e contract worker and lhe acquisition of a domicile of
T05 al p' 712'
choice - 'l'he llotswana position" irosll l}o sauth African Lau; Jottrnal
.tt' pnrscarman .f. (as he then was) tn Re Fuld's Estare (No.3) f 196itl P. 675 at p. 686'
 61
60

a in South lle evidence of the propositus is relevant, albeit not the sole determinant
o work in -r -r- in ascertaining a change of elomicile. Where such evidence is prima.facie
izen of the rsclrle and there is no adverse evidence to the contrary this may serve to be
painted an {r'r-,141 ro establish a change of <1omicile.220
hen giving
actors that 5.3J Domicile of a marri€d woman

?:r:"r :o the coming into effect of the Abolition of Marital Power Act 2004, the
lomicile of :::r:ion iaw provided that a wife acquired her husband's domicile at the time of
evidencc to ni:::lage and ietained it through out the marriage.??' lf the husband changed his
ially in an -rcrcile the wife's domicile automatically changed to that of the new domicile,
t the Estute lr:sc€ctive of whether she was present at that particular place or whether she
change of n**i ihe intention of residing there permanently. "' This provision was based on
: of such a r" >ur-called doctrine of unity of matrimonial domicile whereby it was thought
one before
:*rl- a single domicile of married persons would avoid possible problems of
95ry r Atl ::,:ice of law which would be the case if the husband and wife were to have
lanently or
-r-irerenr personal laws. This doctrine war_reflected in the provisions of s. 7 (1)
!n never l0
2t'7 : ,rf the Matrimonial Causes Act 1973.223 In the light of the abolition of the
.lr{lmon law doctrine of the unity of matrimonial dornicile by section 16 of the
-alr-rlirion of Marital Power Act 2004224, section 7 (t) (a) of the Act will now
rirniE an interpretation of a separate domicile for a married woman.?2't
r and the
ange had 5-1.7 Residence
prlbf, is
rice. The Sction 7 (1) (b) of the Act provides for three years continuous residence in
€ther the Brrsrvana as an alternative basis for the assumption of jurisdiction by the courts
ne in the
y;t ir is limited to wife plaintiffs. This is presumably to alleviate the possible
-rdship, which a wife's dependency on her husband for the determination of
her
otswana.
: day: i:'micile may cause her. The recent abolition of the common law doctrine of the

idence of
domicile = See Mutemachimwe v. The Law Society of Botswana op.cit. supra and Naude v. Naude ap.
::: supra.
or casual : See the South African cases af Mason v . Mason (1885) 4 EDC 330 at p. 336 and Bendell v
3.-ndell1914 CPD 899 at p. 900.
= S.. Egner v. Egner [1914.| 2 B.L.R. 5 and Nla v. Nku [1998] ll.L.R. 187.
* Sce Egner v. Egner op. cit. ar p. 6.
=- That section provides that the domicile of a married woman shall not by virtue of thc
:rarriage Lre considered to be the same as that of her husband, but shali be ascertained by
-::trr-nce to the samo factors as apply lo any individual capable of acquiring a domicile ol
-t^:.--
iinicile of - --,.'lLC,
= -{rguments to that eft'ect which were rojecled in Egner v. Egner op.cit aL pp. 6-7 and in ,Vka
'" 7-i;tt op. cit... at pp191-i92 will now bc sustainablc.
 62

the rationale behind the

unity of matrimonial domicile will now render
to be established must be a continuous
subsection qu"stionaii*.* itt. residence
one'Whatdoesthismean?Doesitimplycontinuousphysicalpresencein
Botswanafortherequisitethreeyearso'-ilttemporaryabsencefromBotswana
such residence? ln Ntwanav'
O"J"g rUg period clisable a wife-frorn acquiring
absence from Botswana for a
Ntwana-"'DiUot*fo lg. J. held that the Piaintiffs
resident in Botswana fcr the
year di6 not prevenf h"er from being continuously
io, this conclusion was that the absence from
irrp*" "r s. 7 (1) 6; il.;r..* f1y*, if the break is not of such duration as to
the jurisdiction *u*"lr*p*uU^.
amounttoanabandorrrnentofresidenceinBotswana,temporaryabsence'from
the jurisdiction *iti not break the continuity
of the residence' This decision is
SffanslEz28 in which it was held that
supported by the Edi-h;tl'e af stry'stv ''
a given perigd.desqip
a wife was ordinarity resio"nt in Engiand throughoutwas with her husband in
which.frne she
absences totalling rin."n months during
alia, that a wife could be
Germany. lt was also held in Lewis v.'Lewifze ,inter
said to t aue uecome an oroinary resident
in England when he sailed in a vessel
a few months stay in that country with
bound for England from Austrilia after
question at issue was whether she was
her husband who ,ernain.d behind. The
fo1 tl= pu.rpo:es of the then section
ordinarily resident i* rr,r*, years in England
1g (1) (b) of rhe Matrimonial Causes ict
1950. By the date of the petition in
resident in.England for two years
1954 she trao ueen ;ndnuously ordinarily
and eleven months. The journey fro*
Auitralia to England took one month or
period of her residence in England the
so and if that p.*oA was added to the
factor that led the court to hoid that
requisite period wOuld be met. :tthe crucial
was that there was no intention on her
she was ordinarily resident in England
parttostayinAustraliaformorethanoneyear.Inotherwords'shehadno
may be argued that
inrention of uuunooning her home in England. It
"o*pi"i"iy residence" as opposed to "continuous
these cases *"r. i**tpreting "orJinary
residence" und os ,o"t be used as authority to support the above
*i*t
position. while il, may-.have some force, the view is nevertheless
"rg**ent_ residence in a place with some
taken that ,in"" "ordinu;y t"tiO*n"r" ""onnotes

op' cit' atp'24 where il

,r,,
See E.K. Quansah"Abolition of the marital power in Botswana' ')'
juristliction is to be maintained' then the
is argued that if this alternative basis tb,. dit'orce
gender neutral'
subsJction must be amended to make it
,., MC The learned jutlge relied on the Zimbabwean
18611995 (29 November 1996) unreported. (1) (c) of the
case of Mandlbaur v. Mantllbaur 1933
(2) S.A 21"3 (Z) which construed section 12
is ii (b) of the
part materia with section 7(1)
Matrimoniai Causes Act of Zimbabwe which
Botswana Act.
119s+1 2 A1l E.R.
536'
"*
tto 1 All8.R.375'
11ss61
 63
?

absence*"' :tn tj
le degree of continuity and apaft from acci6ental or temporary
]S couldbeproperlyusedaSaverypelsuasiveprecedentin'inlerpretingsectionT
with the mischief' which
in (1) (b). Such an int.rportiio" :t+ be.in consonance
Furthermore' such an interpretation
1a the subsection was i-ntended tc deal with-231
"ordinarily resident" in section 8
will be in harmony *irt m. use of the phrase nullity and presumption
'a (l) (b) of the Act, deffi *irtt rt* courtis jurisdiction in
he otideath and dissolution of marriage cases'
im
periotl of residence has been acquired is
to The onus of proving that the requisite
this will certainly lead to a refusal by the
rm upon the plaintiff. i'uitur. to disiharge the evidence
court to assume lunsdiction. Thus in..ltierfngtrn ,Ettterilg,ton,r32
v
is
sCanty in that.the addresses at whictt
ut of the plaintiffs residence in Botswana.wus
period blfof filing the action was nol
ite she had u"en ,esiaeniior the requisite
ruled that she had failed to prove thal
the
in stated in the declarati,on. Ttre court
be courthatljurisdicti,onandconsequentlydismissedheraction.Theevidence
needed to discharge itr1* luro*n may
iiude some objective indicia such as the
immediate oceupation within P"t:t*i:i qtl
sel
rth maintenance of an **iulri*rr*"nt foi
in.o*t may not he feasi?".'t]'
ias this should not be a crucial factor since ""ithis be kept free of rigid
It is submitted therefore that "cantinuous reside'nce"should
.on
and be regarded simply as a question
of fact to be determined by
in formulation
cases'
ars taking into account the facts of individual
Of*'tri
the 5.4 General matters affecting action for divorce
hat
years of maruiage'
her 5.4.1A.Restriction on divorce within two
no for divorce within
hat Section 21 (l)of the Act forbids the institution of an action
lus thelirstt*oy.urr"of-maniag".fititforUiOAenperiodiscalledthe"specified
(2) which allows the coufl
]ve period,, aird is ,rbj;;;th* [rovisions of secrion2l
exceptional hardship
t* make "n **"*piioo ",1't.f a parlicular case involves
exceptional depravity on the part of
,CSS the
rme suffered,by the piaintiff or it involves

perl;:rd Cave inLeve'nev' J'R'C' l192SlA'C' 217 atp'225'

'3"
.., of lresidence" 'ordinary residence' and
:re il Fo. analysis of English judicial interpretation Internstionsl anrj
,habitnal residence' ,.. i.n. McClean "'rhe meaning of Residence"l.l962) 11
r the
168 and c. r'Ltr "Cruse v' Chitturn: Habitual residence
Campararive ro* guorturty irs:-r 1-30' see also
Law Quarterly
judicially explorecl" t1g75)'24 International anrl Comparative
I ean
unreported' where lhe court assumed jurisdiction on
f the Dube r,. Dube MC41/1980 i8 August 1980) defined"
residense although the phrase was n{'t
I years contiiuous
f the the basis of a wife,s
t '3t 1t9z+12 B.L.R. 3.
kr
,.0 S"* firr example LR.C. v. Lysaght i192S] A-C. 234 where regular stay in holels was held
establish ordinary residence in England'
 64

defendant. The rationale behind section 2l {1) seems to be that couples should
not rush to a divorce court at the first sign of a marital discord and therefore the
specified period is designed to give them time to make their marriage work' It
atso signines the State's interest in upholding the stability and dignity of
maniage although it may be argued that the subsection's etlicacy is
questionable.lsa It may nnt achieve the desired result but rather serves only to
postpone the actir:n till after the specified period.?3-5 Be that as it may, the courts,
as mentioned above, may grant a dispensation to an applicant to bring an action
before the expiration of the specified period if the case is one of exceptional
hardship on the part of the applicant or exceptional depravity on the part of the
respondent. Th; meaning of these concepts has not been easy to determine in
other jurisdictions and it is certainly the case in Botswana. In England, for
instance, it has been remarked that what constitutes "exceptional hardship" or
"exceptional depravity" will involve "value judgements of an unusually
subjective character';36 and that the hardship suffered by the applicanl (or the
respondent's depravity) $ql!,tp something out of the .ordinary.-''r.ufhe
application for leave to bring the action is generally heard in chamber-s-'- Td
uni.rs there is an appeal from such decision, it is going tO be difficult for
attorneys to ascertain what the courts think is exceptional hardship or exceptional
depravity. Botswana courts may be guided by the interpretation given to the
concepts under the English Matrimonial Causes Act.

3.4.2 Exceptional hardship and exceptional depravity

It must be emphasised that although the courts in England have demanded that
the allegations of hardship or depravity must be "something out of the ordinary"
or "something that goes beyond the normal ups and downs of marriage", the
general tendency is thal it is not difficult to convince most judges of the
existence of either or borh of the two requirements.23! The following cases will
illustrate the courts' attitude' In the Nigerian case ar&rev' Al<q6uu inordinate
sexual demands, demands when the applicant was in poor health and has just

"' A si*ilar provision in England had come under criticism. See for example, M. Hayes
"Restrictions on Petition for Divorce within l'hree Years of Marriage" (1974) 4 Fam. Law 1'43.
3r't
Because of this the three year waiting period in England has been reduced to one year by
scction i of the Matrimonial and Family Proceedings Act 1984. No exceptional cases are now
permitted. See Family l-aw Acl i996 s" 7 {6).
.ro pe, Omrod L.J. in C. v. C. (Divorce: Exceptional Hardshipl) [1980] Fam. 73 alp.21.
"7 Se" Fny v. Fay U9S2l AC. 835.
tt* Rule 4(3) Matrimonial Causes Rules 1973.
:31'
See Cretney ap. cit. al p. 109.
ru"
1t9621 w.N.L.R. 328.
 65

returned from hospital, physical violence and constanf neglect and quarrelling
and inf'ecting the applicant with venereal disease were held to constitute
excepiional depravity on the part of the respondent and created exceptional
hardship to the applicant. In the English case of Sowna an v. Bawrrunro' Denning
L.J. (as he then was) gave lhe following guidelines on what may constitute the
two concepts: -

"The only cases in which tlre question arises arc, of course, those ol adultery or cruelty.
If there is nothing more than adultery with one person within the first three years ol
marriage that may be considered ordinary depravity. There is, I am sorry to say, nothing
exceptional about that situation, and it does not involve exceptional hardship on the
innocent spouse, the applicant. The distress that if causes is one, which rnany have to
endure. lf, however, the adultery is coupled with other matrinionial offences, e.g. il a
husband not only commits adultery, but also deserts his wifc for another woman, or if he
is cruel to hcr, thus causing her not only distress by his adultery but also injury by his
violence, then, even if his olfence canncrt be stigmaiised as exceptional depravity on his
part, nevertheless, it cloes involve exceptional hardship suffered by the wife. Even if thc
adultery is not coupled with another matrimonial offence, nevertheless its consequences
may involve excepthnal hardship to the applicant, as for instance, whcn a wife as a
result of her adultery has a child by another man $o that the husband, if he took her back,
wor"rld have to maintain another man's child, or it may be committed in such aggravating
circumstanees as to show exceptkrnal depravity. The husband who commits adultery
within a t'ew weeks of maniagr:, or who commits adultery pmmiscuously with more
than one woman or with his wit'e's sister, or with a servanl in the house, may prohably be
e\ labelled ali exceptional depravity. Such, at lcast, arc instances in which when sitting in
chambcrs, I havc g,irv;n leave 10 a spouse to present a petition for divorce within three
ycars 0t marilagc.

In that case a wife's application for leave to petition contained 23 paragraphs of

alleged misdeeds of the husband, 21 of the paragraphs dealt with the alleged
depravity of the husband and 1 with the alleged hardship, which would be
suffered by the applicant. The alleged hardship was the fact that a material
witness was about to leave the United Kingdom so that evidence would not be
available except on commission. Taking this and other facts alleged as to the
husband's conduct into account, the Appeal Court held that retusal to grant leave

to' All E.R. 1?7.

;10+01 z
2u2
lbitj. at pp.128-129. ll'his dicturn was approved by Horwitz Ag. J. in Schultz v. Schultz
Misca. No. 5/1991 (12 September 1991) unreported with the ibllowing comment (at p. 2 of the
transcript) "l will accepr the analysis although with very great rcspect to so leamed and indeed
venerated a judge I think he is a little harsh on modenr mores". The trar on presentation of
divorce petitiun within three years o1 marriage as stated in the dictum has since been reduced lo
one year by s. 1 of the Matrimoniai and Family Proceedings Act 1984.

,A
 66

misdeeds
would cause not only exceptional hardship lo the wife but the alleged
In 6. v. C. (Divotce:
revealed exceptional-depravity on the part of the husband.
Exceptional Harrtskip),1*t th. English court of Appeal held that it is proper for
the iourt t0 take into account hardship arising from the conduct
of the other
spouse, present hardship and hardship arising from having
to wait until
^the
specifiei period had elapsed before a petition could be presented'
lt is therefrrre
depravity and- as in
necessary in a great majority of cases to rely on exceptional
th* *ii. tt"O been led to trelieve that her marriage would be
a
the instant
"ur*;
sexually normal one whereas the result was very different.
she had suffered an
extremely distressing experience and had made out a case
of exceptional
hardship but not oi exceptional depravity. The alleged hardship- *?L
In Foy v"Fcy'-' ll:
the
husband's non-disclosure t0 the wife that he is homosexual.
House of Lords held that the hardship or depravity suffered
mustbeshowfl to be'
.$ome&ing out of the ordiaary, iudgled- nV grclailing.standards of
acceptable
behaviour between spouses, ttrat in u of hardship, there must be evidence of
"a* reiied on
the extent of the appiicant's suil-ering. in particular of the circumstances
as constituting the exceptional character af the hardship suffered'
Further'
was a maiter not of
whether an afplicant had suffered exceptional hardship
upon by
inference but-of assessment of the evidence. This case was relied
physical abuse-and
Mwaikasu J. in MaSwa &v. Maswabi2as where a cataloguc of
The cor;rl held
threats to the applicant's life were alleged against the respondent.
suffered by her
that the applicant's allegations amounted to exceptional hardship
at the instance of the responclent and granted the applicanl leave to bring
a

clivorce action within the specifieel period adding that

'lo-:rygqll1-gd !hg-
b31!9r$g- $
international-commqtity,qs3 ybqle- Yq!.!d noy-{a.v cc1gidq1yi{e
acceprabl. behaviour between spouses"'

is not to try.the issues

J!re--9o.uft,s duty rvhen an application tbr leale is.rlesenl:d
*Gi lut;uther to aS6erta-rn whether the alleged facts, if proved, would amount
jo .1*.i exceptional hardship to the applicant or exceptional deprlvilf .on.lne
part of the respondent. Goddard L.J. (as-rre then was) set out the
principles
lfat
shauld be followed by the court in deciding the evidence before it in the English
case of Winur v. Wbttzr.2at' He said:47: -

?*r
1
t US01 Fam. 23. S*c alsr:r Bllckwetl v. Blackwell {1974) Fam' I-aw 79'
to*
J1982i.4.c.835.
"t Jt9w1 ? 13.L.R. 384 at p' 390.
,*. ?. "12. atp. 75 circd with appnrval irir Mwaikasu J. in Maswabi v. M(ts$'abi
op. tit' al
irl++j
p.390.
2a'
Ibitl" p.75.
 67
t6

"The proviso allows a peti{ion to be presented befbre the expirarion of three years on the
ground that the case is r:ne of exceptional hardship. Those words cann{"}t mean lhal, on
an application Ior leave to present the petition, lhe judge is tc try whcther the casc is one
rr
of exceptional hardship r:r depravity, becau$c lhal woulel involve, certaintry in the latter
ir insiance, deci<ting whether or not the allegation in the petition w€re true. In my opinir:n,
e the words mean ihal thc judgc has to come lo a conclusion that the ailegaiions made in
e the altidavits filed on the applicaticn are such that, if proved, they would amodnl 10
n exceptional hardship or depravity, though of course he rnay take inlo consideration the
a aflidavits. if any, tiled in opposition to assist himself in torming a conc{rsion as lo the
n likelihood of the casc proving to be lhat character."
rl
€
It may be deduced frorn the above cases lhe following propositions, namely: -
€
e 1. The emphasis in the section is on the word "exceptional".
.e
2. The test of hardship is a subjective one and as such a possibility of injury to
rf the health of the applicant is relevant"
n 3. 1'he word "depravity" is not limited to sexual perversions.
r. 4. Adultery alone is not sufficient ground for allowing the application. lt must be
rf accompanied by some aggravating circumstances such as violence.

]'
5. Whether the applicant would suffer hardship if the application is denied
d would depend on the assesiiment of the evidence as a whale.
d
-t
if the court were to conelude that the case is exceptional, it is then required by
u@ the subsection to have regard to thc tbllowing: -
e
LS
(a) The interests of any relevant child.248 Such a chilcl wouki be one of the
marriage or if not one of such, a child who had been accepted a$ part of the
farnily by both spouses; and
(b) The question whether there is reasonable probability of reconciliation
1t
belween the parties during the specified period. This latter provision is an
re
interesting one as there is nc specific provision in the Act enabling the court to
rt postpone or adjourn proceedings to enable the spcuses to explore the possibility
,h
of reconciliation. This notwithslanding, the courts have used their inherent
jurisdiction to advance lhe course of reconciliation.l{e

t*n
See Maswshi v. Ai*swubi ap. cit at p. -191 where the courl noleil lhat lhe lwo rninor
children werc in the custody of the applicant but did not elaborale on how their inlerests were
laken into account befare granting the leave.
t*' See lbr example, I'ule v. I\de MC98119]8 (16 March 1979), unrcporled at p. 2 of lhc
ti'anscript where !{aylion-Benjamin C"J. said: "l am of lhe view t}rat this is a prcper case where
rhe courl should adjourn proceetjirigs lo gnabls altempts to be made at reconcilialion...I direct the
District Cbmrnissioner or lhc Chicl in charge ol Sikwanc area should altempl reconciling lhe
 68

Itmustbeemphasisedthatsection2l{z)onlypreventsanactionfotdivorce
it does not affecl the facts that
from being brought within twc years of marriage,
may be evidence of irretrievabie breakdown
of the marriage' Thus' section 21
(3) specificallY Provides that:-

..Notlringirrthissectionshallbedeemedtclprohibit,h:j]:"9:,gofanactionhasedon
before the expiration of the specified
period."
matters which o""u*.J
the first two years
it is permis-sible to allege matters, which occurred during
fl'trus
\ of the marnage ,rr-ony u"tioi for divoice brought after the specified perieid' So
un u.ion within the specified period is
also if an lgplication_f* ;*.* to bring
retused, thar shou"t;;i i; . bar to
tnJlringing of an action after the specified
any or all the matters"alliged previousiv in
the affidavit
i,ar*,i;;;;;;;
the application for leave'
iupporting
tacts of
ji 5.4.3 Financial protection for defendants in actions atleging ofthemarriage
;;;""i;'Aj 6fu*ial * -"ratnce of irretrievatrle breakdown
an actian alleging desertion
tZ (1) {a) of the Act allows a defendant to
S,eetlB!-
(section15(1)(c))ortwoyearscontinuouslivingapartwiththedefendant.s
(1) (d)) ro apply to the court for consideration of
hislher
consent (secti<ln 15
subsection seems to
iinanciat'position after'the divorce. The provision_gf.tlis
ci&

assume that an action can be brought with

iecrion 15 (1) (c) and (d) as-alternative
facts evidencing irretrievable breakdown of a
marriage' This will certainly
present some difficuity to trr" plaintiff, for
if he is alleging that the defendant has
deserted him, he cannot at the same time
obtain the defendant's consent for the
Althriugh the Act has done away
divorce u. ,rquir*J Oy ,t"tion 15 (1) (d)'10
of the marriage' an
with the appoftionm;nt of blame fcr the breakdown which, if made with
of blame,
allegalion of desertion may well cajfy a stigma
consent, may provoke the
living apafi 1b; il y"u* and tte defendant's
the latter case' It will therefore be
del'endant to refuse the requisite consent in
or in the alternative as explicit from
advisable not to allege the iwo facts together
the subsection.

parties and report the results tr: the cr:urt"'

i:o 1;,. Matimonial Causes Rules" r' 5 {4} speciticaliy requires the plaintitf to attach to his
Fornr 1 in the
Declaration. the document signisring the defendant's consent' in the form of
schedule to the Rules.
 68 69

The court, in order to consider the defendant's application, must have concluded
)rce that the only fact evidencing irretrievable breakdown of the marriage is that
:hat contained in section 15 (1) (d) and must have granted a rule nisi of divorce on
21 that fact. In considering the application, all the circumstances must be
considered and section 17 tZ) enumerates some of these as: age, health, conduct,
eaming capacity, financial resources and obligation of each party, and the
financial position of the defendant as, having regard to the divorce, it is likely to
be after the death of the plaintitf should the plaintiff die first.

ars The court is empowered to refuse to make the rule nisi of. divorce absolute unless
So it is satisfied that: -
is
ed (a) The plaintiff should not be required to make any financial provision for the
defendant, or
"it
(b) The financial provision made by the plaintiff for the defendant is reasonable
and fair or the best that can be made in the circurnstances. 1l may be remarked in
of relation to this that although the legislature saw it fit to provide this limited
ie protection to a spouse who may suffer adversely on a grant of a divorce decree,
on this fact, it totally failed to give similar protection to any children of the
In
marriage in this situation, who by far are the biggest sufferers from a marital
's
breakdown.

o Flowever, the court's power to suspend the making of the rule nisi absolute rnay
e'Q, be dispensed with if the cr:nditions lay down in section 17 (3) are ftilfilled.
!' These are: -
s

(1) lf it appears to the courtthat there is circumstance making it desirable that

the rule nisi should be made absolute without delay, and
I (2) The court has obtained a satisfactory undertaking from the plaintiff that he
I
will make such financial provision for the defendant as the ccurt may approve.

The provisions of section 17 are the exact copy of section 10 (2) of the English
Matrimonial Causes Act1973 and as such one could look to judicial dicta onthe
English provisions for guidance in interpreting the Botswana provisions. In
Grigson v. Crigson2sl it was held that before the court can proieed tcl make a
decree absolute, at least the plaintiff rnust produce an outline of a proposal and
then the court is to obtain an undertaking that those proposals wcluld be given
effect. It is not sufficient for the plaintiff merely to give an unelertaking that he
would make such financial provision as the court may approve at some
?" AIrE.R.478.
llsl+1r
 7{\

unspecified date in the fiture.2tt Th" section enables a far-ranging inquiry

into
the finances of the parlies to be made before a decree is made absolute. This is a
useful device taking into account the limited powers' which the courts
have

under the Act t0 make olders regulating the parlies' finances'

said in the
The words "the best that can be mads in the circumstances" have been
where the plaintiff's
Englistr case of Lornbardi v" Lombardi253 to cover cases
*.7,n, are so slight that it would tre impracticable to make what woulcl otherwise
1o the
be a reasonable ancl fair order. The court can and normally, subject
provision of secrion 17 (3), insist on the proposed financial ittr:g*,*:llrt-'*l:
made absolute'-'- I'hts
defendant being implernented before the decree is finally
prevents subsequent difficulty of forcing the plaintiff to fulfil
his promise after
the divorce when he would have no inientive to dc so' As a result of this' the
provision has been characterised as a "blackmailing operation".2s'5

17 and these
,f-tit *itt be useful at this juncture to give the salient aspects of section
'' are:
(a) It can only be usecl when an action is based on section 15 (1) (d) and the
on that fact'
enurt has found the marriage to have broken down iretrievably
be considered'
{b) All ihe circumstances of tnt particular case must
by the defendant and nol as a
i.j ff.. section is to be used aJ a delaying tactic
defence. lt only serves to delay the decree absolute, thus assuming that
the
the
'q\ plaintiff is anxious lo have the divorce made final as soon as possible,
defendant making the application will Sefve to put pressure on the
plaintiff ttl
make satisfaclory financial arrangement for the defendant'
(d) The decree can be made absolute irrespective of the fact that the said
financial aruangements have not been made if the court satisfies itself
that the
provisions of section i7 (3) have been met'
i.; The application can only be brought between a decree nisl and
decree

absolute.

5"4.4 Reeonciliation
the court
There is no express provisi0n in the Matrimonial causes Act whereby
can adjourn th" u"ii.,n to enable the parties to expl.re the possibility of
their
reconciliation. This notwithstanding, and as indicated above, the courts use

:ir S** Cttmhersr'. Cumherslrlgl4tl w'L'R' 1331 atp' 1335'

25r L'J'
ltol+1 1 w.t..R. 1216 atp' 128a percairns
tt' S** Wilsorzv. Wilxtn llq73l 1 W.L'R' 559'
t5j See Davies L'J. in Crigson v. Crigwn, sttpru'
 TI

o inherenf power fo help towards fhis end.2'56 The need for the parfies ta attemptto
a reconcile their differences is highlighted by the provision in the Matrimonial
Causes Rules (r.4 (2) (iv)) to the effect fhat an application under section 27 for
leave to bring an action within the specified period should state, whether any,
and if so what, attempts at reconciliation have been made by the parties. It will
therefore be a prudent move for attorneys to refer their clients to the institutional
social services to see if a reconciliation of the parties cannot be achieved before
advising them to proceed with either an application for leave to bring a divorce
action or simply to commence the action.

5.5 Ground for divorce

By soction_l4 of the Act the sole ground on which an action fbr divorce can be
Uiougfit shiil be that the marriage f,as broken down irretrievably.2sT However, it
will serve a plaintilf no good to come lo court and say his marriage has broksn
clown simpliciter, he has to allege and prove one or more of the facts set out in
section 15 as evidence of the irretrievable breakdown of the marriage. The
wording o1'section l5 makes it clear that the plaintiff is confined to those facts
set out therein and nothing else, for the court is enjoined not to hold a marriage to
have broken down irretrievably unless the plaintiff satisfies it on one or more of
those facts. The plaintiffs task is not done even if he satisfies the court on any or
e .iR! all of the facts stated in section 15 (1), for by section 15 (3): -
€
o "lf the court is satisfied on the evidence of any such fact as is mentioned in sttbsection
(1), rhen, unless ir is satiified on all the evidence that the marriage has not broken down
d irretrievably, it shall g-rant a rule nisi fbr divorce,l'
ie
This subsection enables the court to refuse to grant a decree if, despite the proof
c of one or more of the facts, it is nclt satisfied that the marriage has broken down
irretrievably. Thus, in Mombala v. Morybala,2sB the plaintiff alleged that her
-*diinker
husband was a heavy who frequently absented himself from the
matrimonial home and assaulted her on his return. He also told the plaintiff to
leave the matrimonial home and refused to speak to her, maintain her or the
rt chitdren. lt was common ground that the parties had been living apart for
)f approximately three months before the action was brought. Despite the fact that
ir

ttt' See I'ule v. f'ule MC98ll978 (16 March 1979), unreporred.

"t See Molefe v, Malefe [20011 2 B.L.R. 431 and Motefe v- Molefe [20031 2 B'L.R- 157'
258
1976 B.L.R.31.
 72

theplaintiffyS:"ubl"tosatisfythecourtontheallegedfacts,thetrialjudge,
RooneY J.. satd-' : -

..Althouglrlamsatisfie<lthattlredefendarrthasbehavedbadlytowardshiswif.e,Iamnot
therefirre' that I am
that there il n , un"" of ,""onlifiutio"' It foilows'
convinced "trrr*t and has letraveo in such a way that this wife cannot
unable to conclude trror irri, of the
reasonably t',, ."p*"t?d';;
il; with him' hking into account the whole
gircumstancesandthecharactersandpersonaiiticsofthcparties...
of the,Jac*^:-** plaintiff raises to
a
In practice, rherefore, the proof
9f
u:{
and then it is up
u breakdown of the marriage
presumprion rhailh;;; ;; t"*n
thedefsrrdanttoprovethattheret,u*notu*"nabreakdown.lfheraisesany
is iik;ly t0 find that the marriage has
not
breakdown, the court
doubt about the legal burden of
..litutAo*n
irretrievably since it is the-piaintiff that bears the
the marriage' Thus' in Wageng
broken down v'
nrovins irretrievabie of
'woguig,too DYke CJ' said: -

inetricvable breakdown of the

..In efiect I cannor find that the plaintiff has proved
to be 'such that she cannot' after
marriage or thar -h- il;p;J
rrr" o"r*oant's con.Juct
t" *irt' him"' The application tbr
ali this time be reasnnably expscled ""*i"r"i"liue
divorcc is dismissed''''"'

5.6Factswhichmaybeevidcnceofirretrievablehreakdownofamarriage

5.6.lThatthedefendanthascommittedadulteryandtheplaintifffinds
it intolerabf* to tf" defendant * section 15 il) (a)
fileiitft
intolerability'
of this fact namely adultery and
There afe two constituent elements Proof of one without
u orcrr"""n be granted'
They musr uotr, u, p*";J;;f"r-
requirement of the subsection'
the other witt not saiiuiy tt'tt

5.6.2 What is adultery?

slordv' said that:

of l:'N:
Karminski J' in rhe English case 'Sap m rush in whsre
.,Nobocly has yet attempted to define *iuir*ry and I da
not propose

wiser men have not'"

1 B'L'R' 59'
2s')
Ibirl.at p. 3?. See aiso Pheto v ' Pheto ll975l
r" 1lozs1 t].L.R. 17' .-_- . r ro?Ar R r R t2 ato.z'.
t'' Ibid..at p. 19. See aiso Khamanev' Khamsne Ii976] Il'L'R '22atp'2:
,,',
1tu5+1P.3q4.
 4^
72 IJ

Ie' Despite fhis assertion many judges have attempted, if nol to define the word,
then to elucidate its constituent elements. Thus, in Mawhtmetse v. Molapo,263
O'Brien Quinn, C.J. said:64:
rot
tm "Adultery is sexual intercourse by a lawfully married person with any person other than
lot his or her spouse and a civil action for damages lies at the suit of the spouse whose
he mariage rights have been violated."265

5.6.3 Sexual intercourse for the purpose of adultery

o

to There must be some penetration of the t-emale organ by the male organ however
ry brief.266 This need not be "ordinary and complete" intercourse as required for
ot consummation of marriage,267 Atr ung3ggeqsful attempt a! sexual intercourse is
of not sufficient {or_ this purpose,^so-also is masturbation even though sexual
v.
'derived
Catisfaction is from it.r68 The intercourse mu.st be consensual or
voluntary as such'lif a wife is raped that may serve as a defence to a charge of
,id[itery.]oe
he
er
5.6.4 Proof of adultery
or

The blrdea of ptoof is placed on the plaintiff and he must discharge it on the
balance of probabilities. The very nature of adultery does not lend itself to direct
%. evidence, hence, except where a party confesses, and sometimes the genuineness
of such confessions is dubious, it is normally proved by circumstantial evidence.
ls
However, such evidence must be strong enough to warrant the inference, not
merely that adultery might have taken place, but that it actually did take place.270

?or
Lt1
1trszl I r].L.R. ro2.
lbit!. at p.103 relying on Biccurcl v. fJiccard & Fryer (1S92) 9.S.C]. 473 andViviers v. Kilian
192'7 4.D.44e.
t"' Se" alst) Earne tt v. Ilarnett 1 A11 E.R. 388 and Dennis v. Dennis P. 153.
[1956] [19551
2nn
Per Singlcton J in Dennis v. Dennis supra aLp. 160.
2"'
D-e. v. A-g ( 1845) 1 Rob. Eccl. ?79,297 per Dr Lushington.
zbn
Sapsfarcl v. Sapsford supra.
16')
Rerlpathv. Redpath [1950,| 1 All E,R. 600.
"u Sec Mangole v. Rapuleng [19901 B.L"R. 450 at p. 456 per Livesey Luke C.J. approving the
d.ictum of Innes C.J. in the South African cass of Kteinwort v. Kleinwort i927 A.D" 123 at p.
124. See a)st> Mabote v. Mahore [1999] 1 B.L.R. 386 at pp. 405-406 (CA)per Steyn J.A'
 74

5.6.5 Confession and admission

Althous.h confession or an admission may be said to be the best evidence of a

* p.rrnn:* guilt,:7r in matrimonial causes, because of the possible collusion
iletween farties, the court usually views this type of evidence with some
suspicion. It therefore usually requires corroboration of such evidence' The
general principle regarding tiris was staled by Edwards, J" in Ratshosa v'
Votrlrorf" ie adJpted a stalement from the South African case of
*i.r.
Manser v. Manser. He said:

"ln Manser v. Manser, l95S (1) S.A. 399(SR)), Munay C.J. said 'The general principle
adultcry by
of our law (Reirt v. Reid, 1908 T.S. 470) is that, normally, a con{ession of
per to justity the court in acting thsreon"'the precise
the party ohargecl is insut{icient se
specifically
nafure ut tfr" u,trtitional extranecus evidence has apparently never heen
defined except in general terms that the evidence should be such as to confirm the
genuineness bi the confession and tlispel any suspicion o{ collusion or iither sinister
its discretion and grantcd a
[u.pn*". In a number of cases ihe court has excrcisedif satisfied of its genuineness...
divorce on ths uncorrotloralecl evidence of a conf'ession
i might ait<l that the desirability of obtaining extraneous evidence is, of Course,
or herself,
increised if the only evidence of the confession is that of the plaintitf himself
an interested party desirous of securing a divorce... I proposed to lollow the general
principle laicl down in Stesle v. Steele...' where corroboration of confessiotr can be
'i+'
Lasily'and locally obtained such evidence should always be adduced."2?3

In the instant case the only evidence of the confession was that of the plaintiff,
an
although the parties both
interested party, there was no evidence of corroboration
live at the same place.27o The court also adopted the law as stated in Tolstoy on
Divorce,?7s to the effect that: -

,"The
court will only act on an unconobOratecl confession or admission if it is satisiied
treyonel doubt lhal such conl'ession was in fact made and it is genuine and
it it has
diiected itself as to the danger of acting without corroboration."

In this connection, the court rejected what was said to be the modern English
practice of almost always accepting evidence of a confession of adultery without
corroboration unless oi courst there are circumstances to justify the court in

tt' S"" the English case of R. v. Baldry (1S52) 2 Den' 430 per Erle J'
272
1tor81 n.L.R. 64.
tt't
See Oletile v. Caseitsiwe 119991 2 ts.L'R. 296'
27a
See Dibore b v. Dibotela [19881 B.L'R. 353.
ttt 7th e,lition at p. 61.
 -\

75

thinking that the confession is a sham. The court accordingly rejected the
alleged confession.

5.6.6 Circumstantialevidence

The following are types of evidence from which adultery may be inferred.

(a) Evidence that the defendant and another man were living together as man
and wife. This may be testified to by the plaintiff himself or an independent
person. Thus in Kitze v. Kotze & Cam276 the plaintiff gave evidence that the
iefendant had ran off to live with another man. The court held that adultery has
been proved.

(b) Evidence that the defendant and the co-defendant were found in a
compromising position may be gnough. In Dambuza v. Dambuza and Mmedi,277
the deftndani*iru was fbund sleeping with another man in her mother's house.
Both the defendant and the co,defendant were unclothed except that they were
wearing vests. The defendant denied these allegations but confessed that four
years Jarlier she had committed adultery for which she was forgiven by her
husband. The court held that taking the subsequent actions of the wife after this
incident int6 account, the probability was clearly in favour of the plaintiffs
% allegation that he founcJ her sleeping with another man (whose identity was not
established as the only evidence against co-defendant was hearsay) with whom
her relationship was a sexual one. The court accordingly held that adultery has
been proved.

(c)Evidence that the wife has given trirth to a child of which the husband was
which the
not the falher. Such a situation occurred in Maruswaneng v. Maruswanengt'Ts
although the divorce was glanted on the fact r:f desertion. ln Ngwigwa v'
Ngwigwazlu hor".urr, the court held that evidence of a husband, which would
t.nC io bastarclise a child of the marriage is inadmissible. This rule has been
abrogated by section 21(2) of the Evidence in Civil Proceedings Act which now

,t,' Cirril Trial6?/1969 (B October 1971) unreported. See also the Nigerian case of Evoroju v'
Evoroja [1961 ] W.N.L.R. 6.
,tt MCOlllgZi 1:t augustlg"Tg),unreported. See also Makgutov" Makgato MC15711981 (29

$f'ili111)ir;U?U'ftu,ch ren4). unreporred. See als. Baitsitcv. BaitsitellqTe-rtol R.l-.R.

111an<l Mosimev. Mosime MCNo. 15211981(l0May 19t13), unreported.
27')
1976 B.L.R. tt7, relying on Russell v. Russell [J924] A.C' 687'
 76

witness to give evidence of

makes a spo'use a competent trut not a compellable
non-access.

(d) Findings in other proceedings, such as a husband being found to be the father
joined as a co-defendant in a divorce
of a child in affiliation proceediigs or Lreing
be used as evidence of
action and adultery is proved in that proceeding may
arlultery. However, the use of this type of evidence
will be problematic because
by which a conviction
of the operation of the rule in Hollington v. Hewthornt*'
in a criminal court is not admissible in subsequent
civil proceedings as evidence^
walconvicted' The ratio of
that the accused committed ths offence of which
he
of a civil court in
this case is wiile enough to be extended to the findings
the same parties.3B?
subsequent proceedings, which are not between

5.6.7 The alleged adulterer

must be made a co-defendant

The alleged adulterer, by virtue of s. 19 of the Act,
of this provision was
of the action unless excused by the couft. The importance
emphasised by Edward s J . in Bashe v. BashSB'
*here he said2*a: -

uttless excused' to make

"The flrst point to notice is that the section requires the piaintiff,
the allegei adullercss a co-defendant even though
her name,and identity are unknown to
qB rhe plai"nriff - see Eastham v. Eastham (1943) 1 All
E.R. 6-sl a1 660 D-E; Sage v' Sage'
point is that the court may not grant a
iiq,|A i Au E.R. 492 at 494 C-D. The second alleged adulteress has been made a
divorce on lhe ground spccificd in s. 15(a) unless the

.n,,This is in consonance with dcvelopmenls elsewhere, see s. 43 (l) of the Engiish Matrimonial
Ac1 and s' 101 (3) of the South
causes Act 1965, s. g4 of the Nigeiian Matrimonial causes
3 of civil Proceedings Evidence Act 1965
Atiisan Gencral t-aw Amendment Act 1935, now s.
van Lutte'neld v' Engels 19-59 (2) S'A'
and s. 226 crf the criminal Procedurc Acr 1977. See
als0
6ee (A).
i.' iil+:l 2 All E.R. 35. Now overr6led in England by sectir:ns li and.
13 (as amended) ol the
and lindings of aduhery and
civil Evidencc Act 1968 in so far i1 governs pruof of convictions Act 1984
Criminal Evidr:nce
paternity in civil proceedings. See alslo sectitm ?4 of thc Police and
Attorney-Ceneral v' Malakwane [197L]
in relation tr; proof ol ccnv]c$ons in criminal cases' In
in v. Hewthrtrn should not be
? I].L.R. 19 at p. 21, Young c.J. held that ths rule Hollirzgtot't
J' rn Botswanu Insurance
accepted in llotswana. Ttr:is view was reiterated by Barrington-JClneS

io.ilrry.lLtzl. v. Ketlebrgile (JvrlTrial Nei.48.5/1984, (30 Augusl 1990). unrepi:rted at pp' 2-3
not liee liom dil'ficulty" Sec
0f th$ transcript. The l."uuun, given for this views are however
Gaborone' 20A4 at pp'119-120'
8,K. The Botswana Law of Eviience'Bay Publishing,
r*, S** D.T. Zetfertt et of South African Law of Evidence Butterworths, Durban' 2m)3al p' 315-
319.
'no \g7i B.L.R. 52.
ttt Ihid. ilt p. -c-3'
i6 77

,;p-defendant or the ptaintiff has been excused from making her one. Serl Dancc v
of
Dance (Z) 1976 B.L.R. 43 at47. S. 19 (2) appears to be imperative because (a) the
imperative 'shall' is used; (b) the provision is one regulating procedure in a court cf'.
Rex v. Noorbhai 1945 A.D. 58 at 64; (c) the granting of power to excuse itself goes to
€r indicate that the requirement prescribed is imperative cf. Le Roux v. Grigg-Spall, 1946
FC
A.D. 244 at 250, (d) especially when the excusatcry power is taken into account, lhe
of requirement is not difficulr to cornply with, and the advantages of an imperative
s€ conslruction maybe thought fo outweigh the disadvantages. The nexl poinl lo nolice is
ln that in England the view appgars to have treen accepted in regard to cases where a
husband.u*s on the ground ofadultery - see Sage v. Sage, supra at 495F- that where the
of alleged aduherer is actually unknown the courl can in practice do no other than grant
in leave to proceed without a co-defendant, but that where the alleged adulterer is a known
person whom the husbancl believcs to be guilty the court can do no other than insist upon
i.tir b"ing made a co-defendant. S. 19 (1) and (2) arc, howevcr, less slringen{ than the
cirrresponding English provisions have been - see Dance v. Dance (2), supra at 46'"

failure to cornply with the section will lead to the allegation of adultery being
mt
struck out of the cleclaration. The application to be excused need not be made
before the action pfoceeds. It could be made at any appropriate lime and the
AS

court has an unfettefed discretion to grant or not to glant the excuse.-"'

ke
to
5.6.8 lntolerability
l&. Proof adultery on this fact is not enough. The plaintiff has to pfove
of
ia
eA additionally that he finds it intolerable to live with the defendant. In Makgato v.
M akg ato286 o'Brien-Quinn, C.J. said :

rial "...ar1ultery, accorrJing to the terms of s. 15 (t) (a) nf the Matrimonial Causes Act (Cap.
uth 29:06) musr bs coupled with the fact that the plaintiff finds it intolerable to live with the
det'endant betirre it can be fbund that the maniage has, under that head, broken down
F65

.A. irretrievably."

ihe
The question that may be asksd is, must the intolerability be because of the
uld
)84 defendant's adultery or can it be attributed to another cause? The English courts
711 have given clifferent answers to the question. ln Roper v. Roper and Anor.:E7 ,
be Faulki.l. said:28s

iee
trs
i5- Dancev. Dance {2) tl976l B.L"R. 43
t86 ^
JUpra.
t*t
1rwz13 A1l E.R.66tt.
2u
lbitl. at p. 670.
 78

-.1
think that common sepse tells you that where the finding that has got to be made is
that the respondent has committed adultery, antl the.petitioner tinds it intolerable
to live
with the reipondent, it means 'and in consequencs of the aclullery the petitioncr finds it
intol{erablc to live with the respondent"tse

In Cleary v. Cleary an4 Anar.ze0 the English Court of Appeal held:

"As a matler of interprelation, I think the two tacts ott s. 2(1) (a) arc independent and
?-el
should tre so treated."

Arguments have been advanced showing that the proper interpretation cf the
pro'vision is that the intolerability must be in consequence of fhe adultery'"- The
arguments are however predicated on section 2 (1) of the English Act that
privides that where the ,spouses have cohabited for a period or periods, not
exceeding six months after the discovery of the adultery relied upon' such a
period oi periods shall not be taken into account in determining whether the
petitioner finOr it intolerable to live with the respondent. It can be inferred from
ihis that such cohabitation would otherwise be material. lf so, the arguments
continue, then it is so only on the assumption that it must be the respondent's
adultery that makes it intolerable to live with the respondent. While the force of
s -.! these arguments is recognised, their efficacy under the Botswana statute is
d'* doubtful. The reason being that the Botswana statute has no equivalent provision
to section 2 (1) of the English Act and so the interpretation of the two elements
of adultery and intolerability as mutually exclusive is to be preferred.
1
i-
5.6.9 The quantum of evidence of intolerability

Does the court have to accept the plainti{f s assertion that he frnds it intolerable
to live with the clefendant? The answer may be no. In Pheto v. Phetttzes the
court thought that:

.oA1d when it says 'the petitioncr finds it intoleraLrle' it does not mean 'the petitioner
lea
says that she llnds it intolerahle""

G oaelrich v. Goodr ich [1972] 2 All E'R. I 340'

2rt!)
This view is contrary to
'"" 119?41 1 All E. R. 498.
2"r
bcs&in 2 {l) (a) o{ the English Act is the equivalent to section 15 (t) (a) of the Botswana
Act.
"t See Barton "Questions on Divorce Refbrm Act I 969" ( I 9?0) 86 Law Quarterly Review 348.
rt31twst1 1s.L.R.59.
2"t
The court relied on Faulk's I's tlictunt in the English case of Roper v. Roper sttpra at p. 670.
A similar view was taken by Scarman LJ. in CIeary v. Cleary supra al p' 503'
 79

S
e This shows that the court should not just accept the bare assertion of the plaintiff
ir that he or she finds it intolerable to live with the defendant. [t must, on Lhe
balance of probabilities, satisfy itself that the plaintiff in fact is telling the truth.
However, sometimes the bare assertion of the plaintiff is accepted without more.
ln Dambuza v. Dambuza2e5, Edwards J. said:2q6

o'l therefore find the allegation of adultery to be proved. I am prepared to accepl

plaintiff's elidence that he finds it intolerable to live with first defendant."

e If cou{ wishes to assess lhe pl4intiffs assertion,llis wltJ entail taking ItJ tl:
rhe
€ ciicumstances of a particular case into accounl. The provision of section 15 (2)
rt of fhe ACt strengthens this approach. The subsection provides as follows:
)t
d "On an actign for divorce il
shall be the duty of the court to inquire, so tar as it
.e reasonably can, into the facts alleged by the plaintiff and into any lacts alleged by the
n dcfendanl.''
s
s 1
{
5.6.10 Award of damages against a co-defendant in adultery
rf
is Although not specifically provided for by the Act, at common law, the plaintiff
@' has a cause of action for damages against the co-defendant with the adullery was
t5 committed.2et The basis of the claim rests on contumelia and loss of
consortium2es and stems for the fact that historically, the Roman-Dutch law
regarded adultery a-s- a crime although this categorisation failed to sulive under
South African law2eo and so was not imported into Botswana under the reception
statutes. Nevertheless, the action for damages against the adulterer has survived
and thus becomes incongruous with the contemporary conception of divorce as
non-fault base<l. This incongruity was recognised ^lo^ng ago by Blackwell J. in
the South African case of Roseiuum v. Margolis3oo whete the learned judge
expressed the view that:

-" Supra.
'nt'Al p. 5 of tho transcript.
tt" See Mangole v. Rapuleng [1990] ts.L.R. 450 at p. 451, Kuunclil v. Pholi Civil case No.
Ig88l1gg2 1996), unreported, Meclape v. Baakanyang, [19961 I].L.R. 612 and
(6'1' September
the South African case ol Bicca rd v. Biccard and Fryer (1892) I S'C. 473'
to8
See Kcttze v. Kotze wpra, Medumetse v. Molapo [198?] 1 B.L.R. 102 and Bright v.
N g akants i [2003] ? B.L.R. 335.
tu' See Creen v. Fitzgerald 1914 A.D. 88 where tnrd de Villiers C.J. dealt with lhe history of
{r adultery as a crime and its subsequenl decriminalisation.
ttu'
r944 w.L.D. 147.
 80

,'There is something, in my opinion, to be said for the view that an action for damages
moriern concepts of marriage
againsl an adulterous thirjparty is 6ut of harmony with
3ol
anO strould be abolished."

retfogfessive as it is
The continuing retention of this course of action is therefore
Matrimurial Causes
not in consonance with the professed rationale behind the
Acr. However, damages are awardtd r."itlt-t&1T_.X8r$l$g
inflicted upon the plaintiff and for the loss otd'cohsortltlm'
I
be compensatory and not punitive or exemplary in character. Thus where
plaintiff had
quantiflng the loss to the plaintiff is not possible or where the
sufferecl no loss at all, the damages will be nominal or
nothing will tre awarded'
ln Kotze v. Kotze ancl Cam for instance, Rooney Ag' C'J'
said:

."Thc loss sustainecl is always difficult t() measure fbr there is something unreal ahout
placingavalue,expresseclindamages,onawifewhohasprovedunlaithlul"-

ln Kotze,the court awarded the plaintiff R100 (the then currency of

Botswana)
as damages - a ridiculous prize for victory. ln Madumct.le
v. Mttlupo,'"'
plaintiff because, on the
O'Brien-Quinn C.J. refused to award any damages to the
or dignity, neither
aaa-t evidence, he had suffered no losso for example, to his standing
was he sutrject to, inter alia, offensive nor degrading treatment or exposed tc
an award of P20
ridicule. ln Mabote v. Mabate3')o the Court of Appeal reduced
discouraged and an out
0t)0 to P7000 and expressed the view that such actions be
of court settlement snoutd rather be pursued. It is submitted thal the time
has
whether it is in
come for the re-evaluation of this action with a view to ascertain
consonance with the present no fault concept of divorce'

5,7 That the defendant has behaved in such a way that the,plaintiff
15 (1) (b)
cannot reasonably be expected to live with the defendant'section

The plaintiff must prove two things uniler this fact. These are
(1) the defendant
of that behavicur, as proved
has.behaved in a particular *oy un,l (?) that because
about the det'endant, the ptainiiff cannot reasonably be expected
to live with the

,,,' At p. 158. See also Kotze v. K,tze & Cam supr& per Rooney A.C'J. and lhe remarks ol Ste yn
J.A. in Mttbrste v. Mctbote.rapra. The aclion has been abolished
in England by s' 4 of the l-aw
Rcform (Miscellaneous Ptovision) Act 197ii'
B' L'R' 248'
"t' Srrpro. Ses also Ngrskae v. Ngakae 11979-801
t"3
,srrptrr.
t"'.srpta.
 81

defendant. lt is clear from this lhat it is not the behaviour that needs to be
unreasonable but rather the expectation of cohabitation.sOs

The behaviour that a court may regard as fultilling this fact is one that must be
more than the ordinary wear and tear of married life.306 Married couples are
) expecled to put up with all the vexations, the quarrels and the troubles that are
i ordinary incidents of married life. They have, after all, taken each other "for
n'Ltricri ':'fis
better or worse" and must put up with the temperament and defects of character
[; of each other. A time may howevet come when defects in character or
) temperament become unbearable but whether this state has been reached, will
t depend on all the circumstances of a particular case.'ot

s.?.\bThe test for behaviour

The test of whether a particular behaviour is such that expecting the plaintiff to
live with the defendant is unreasonable is an objective one. Howevet, it is not a
test of a "reasonable spouse" but rather one in which the personal idiosyncrasies
of the plaintiff and the defendant are taken into account. Thus in, s/r v. Asft308
l
Bagnall J. interpreting the equivalent provision in the English Act, said:

r "ln order. thercfore, 1o answer the question whether the petitioner can or cannot
)o, reasonably be expected to live with the respondent, in my judgment, I have to consider
I"' not only the behaviour of the respondenl, as alleged and established in evidence, but the
t character, pcrsonality, disposition and behaviour of the petitioner. The general question
S
may be expanded thus: Can this petitioner, with his or her character ancl personality,
n
with his or her faults and other attributes, good or bad, and having regard to his or her
behaviour during thc maniagc reasonably be expected to live with this respondent?"

ln Livingstone-Stallardv. Livingstone-Stallard.30e the test was put thus:

"Would any righl-lhinking person comt: to the ccnclusion that this husband has behaved in such a
way that this wife cannot reasonably be expected to live with him, taking into account the whole
Lt
o1'lhc circumstanccs and lhe character and personalities ofthe parties?"
d

In Ri/ey v. Riley3tl Hayfron-Benjamin C.J. while accepting the As& v" Ash
formulation to some extent. was of the view that:
tl
t-
t"' S.r the English case ol Bannjster v. Bannister (1980) t0 Fam. l^aw 240.
'"n Se. Wageng v . Wageng [19?Sl B.L.R . 17 at p. 19 .
r"t See Wageng v. Wageng op. cit, supra.
r"*
119721 1 Alt E.R. 582 a1 pp. 58-5-.586.
3'i"
J19741 2 All E.R. 766 atp.77L.
 82

,.The real question is 'expected hy whom?' Obviously it cannot bc thc plaintiff as that
judge's or the public view
will open the docr tr: uniiateral divorc.es. It is either the trial
is an objective one, then" it
of the conduct that is the determinant. If, howevcr, the test
cannot reasonably be expected,by
musi be whelher the conduct is sucir that the plaintilf
to live with the det'endant''''"'
the community to which the partics belong, to continue

more problems than- it

It is submitted that this formulation of ihe test may create
will solve, How, for example, does the court go about {isclver{q ,t-!1
v. 'l.shiretetso' - was
community's view of the issue? corduff J. in Tshireletsa
of the view that if one relies on the test formulated in Rilley,
the concep' lill
apply as other legal fictions' He
become nebulous, indefinable and ditficult to
Justice thus:
preferred to answer the question posed by the Chief

.. .reasonably expected' seems to me the same as expected by any reasonable person and
within itself what it conccivss tc)
this in practice means that the trial court has to create
But what is being k;Oked at nv tfl.s
hc the reaction oI an average reasonable person.
disclosed by the evidence with
avefage reasonable p;;t;;:* the subjective situation
which rhe plaintitf, i-i"g ift- person sire is, had to deal.
I respectfully tavour the views
expressed in Ash's case."

to that put forward

q It is respectfully submirted that this tbrrnulation is preferred
as set out in
by the iearned Chief Justice as it accords with the formulation acceptt9 by
been generally
Livingstone-staltard v. Livingstone-stall.ard that has
whether behaviour is such as
the English courts as the applopriate test t0 decide
to be uirbearable by the plaintiff'r'i

(1) (b)
5.7.2 Examples of behaviour sufficient for section 15

to be tolerated by a plaintiff
The behaviour lhat may not reasonably be expected
is multifarious and one cannot give an exhaustive tist
of them' However' the
followinghavebeenheldtobebehaviourthatmeetsthetest.

3'(i
1i9791 ts.L.R. 1oo alp.
102'
:,,, He disagreed with the suggestion in As& that, inter a/u, a cirunken man is likely to succccd

wilh a drunken wit'e.

3'r
ltvB:1ts.L.R.26. Botlulala v. Bodulala (?) [1979-80i
[1964j A'C' 644' See alsc:
3r3'Sec Soltins v. Gollins
and Ramosarwa v. Ramttsarwa MC
8.L.R.263. Kalobeng v' Kalabeng [1983i B'L'R' 281
95/19B3 (13 August 1984). unreporied'
 83

l. Excessive consumption of alcohol and violence towards the plaintiff Thus in

Mhlangu v. Mhlanga3'o the defendant assaulted the plaintiff on a number of
occasions necessitating hospital treatment for which she had a medical certificate
and scars on her body to corroborate the assaults. After one of such assaults, the
defendant was convicted of assault by the customary court and sentenced to a
fine. It was also alleged that the defendant was an excessive drinker. The court
held that there was no doubt that the plaintiff cannot reasonably be expected to
live with these kinds of trehaviour and consequently granted her a rule nisi.

2. False accusation of infidelity, theft and interference with religious belief -

s
Kaluheng v, Kalabeng.3l

3. ln&odulalav. Bodulalu,3t6 although the followingbehaviour of the defendant

was proved, the trial court held that they were not grave and deep-seated enough
to warrant a decree being granted: -

(a) Defendant drank heavily and absented himself at weekends;

(b) He embarrassed the appellant by uncouth behaviour at a cocktail party;
(c) He embarrassed the appellant by faucous behavicur at the Holiday Inn, and
(d) During the latter part of the marriage! fespondent was rough with the
appellant when having sexual relations with her thereby causing her pain.
h
On appeal, the Court of Appeal held that in terms of s. 15 (1) O) the appellant
had established that the respondenl's conduct entitled her to withdraw
cohabitation. It accordingly granted the rule nisi.

4. Refusal to have sexual relations with a plaintiff.317

5.Failure of a defendant to contribute to the upkeep of lhe family. ln Mokobi v.

M9kohi318, the defendant, a veterinary officer in the Government Service,

rr4 See also filley v. Riley supra and Tshireletsa v.

MC 5sll977 (17 May 1978), unreported.
7'shireletso supra, Kgathi v. Kgathi MC No. 111/1983 (15 June 1984), unreported. Moswang v.
Moswang MC No. 3711993 (22 August 1994), unreported and Morwaengv. Morwaeng MC No'
2OAl1994, (29 April 1997), unreporied'
t'' Op. cit. suya.
Io
;r9191e.L.R.103; [19s0] B.L.R.263 (c.A.).
t't Se" Ramos&rwa v , Rumosarwa op. cir. .supra. See alsa Sechele v . Sechete MC No. F3/1 986

(16 November 1988). unreported. In Setlzomrs v. Sethomo MC No. 2611980 (16 June 19tt0)
unrep<rrted the allegation , inter alia" of deniai of se x by the dsfendanl lo the plaintiff was not
pr0ven.
rrn
MC ngl$77 (9 March 1979) unreported.
 84

it was unreasonable expe"i ift" piaintiff to,bear the burden of

refusedtocontributetothefamilyupkeepthroughoutthemarriage.Thecourt
to
held that A rule nlsi was
of the-marriuge'single-handed'
oroviding for the tou, "rrilar*n
granted to the Plaintiff'

to plaintiff s life'3le
6. Physical violence and threats

13 3 Bet\ariout atisingtrom illness

specifically provide for divorce
Although the Matrimonial causes Act does not
on the fact that the defendant is suffering
from some illness' either physical or
is
has broken d:Yn irretrievably there
mental, to such an extent that the marriagi
$
an indication in *lis ptu;;..2S (2) tti
tttiu is a possibility. section 25 (3) for
1
example, is to the .rr".t that the court's exercise
of its powers dtt s'.25 to
shall be exercised with the
make interim orders for the payment of alimony
{
necsssary moditlcafion where^an action
for divorce is brought by a wife on the
j
been criticised as: -
j,l
grourrortrher husrand,s insanity. This provision has

to continue to refer to a divorce 'on the grounds of her

.,... ltusbattd's
anornalous
tbr an action is now irretrievable
insani8, when. u".orJlng to s. 14" the sole ground
3l')
hr.akclo*n,"

broughl on by physical or
This criticism aside, can a spouse rely on behaviour
faced with the question but a
mental illness? The courts have noi yet been
decisions on the polnt' In
orobable answer *uV l* derived from the English
';;i;;'.k;;;iii-rho husband ar some poinr in rhJmarriage began to show signs of
obsessions with tape recorders'
mental illness that took the fonn of iestlessness,
letters to distinguished
sitting glued to the television scfeen' and writing
when he was discharged
politicians. He was admitted to a mental hospital and
blamed the wife ior putting him there. The treatment
at the hospital was
succeeding although hi oftei sar slumped in a
chair' The wife was prepared to
On one occasion the wit'e
carry on with marital life for the sake of the children'
went out and came home late having stopped tor a
drinkwith a man' On tinding
the children, after that the wife
this out the husband callecl her a silt in'front of
when the husband
tried to commit suicide. She petitioned fbr divorce and
as a sort of joke'
received the petition, he read it out to the children

1te
Maretiv.Moret|f2000l I ll'L'R' 175'
3!t'
Himsworth, op' cit. at P. 117'
3t'
1t97213 All E.R. 219.
 u5
84

that the English Act's

urt
on this behaviour, sir oeorge Baker, P. was of the vier'v
of
-q"i"-f*t of s. 1j tf i tl, rJquires the defendant to have 'behaved"' Behaviour'
he held, is something more than a mere state of affairs
or state of mind, such as
,'as in this context is an
for exampl., u ,."pufnancy to sexual intercourse, behaviour
Such conduct may
action or'conduci fi tne on" *poup that affects the other'
take either acts or the form of an act or omission or
may be a course of conduct,
the dictum of l'ord
which must have some reference to the marriage. Adapting
Reid in William.s u. Wnio*r,3" h" formulated the test
of trehaviour in this
all allowances for his
context as'whether the facts are such that, after making
the character and gravity of
disabilities and for the temperaments of both parties,
,rce to.live with
his acts are such that the ptaintitf cannot reasonably be expected
lor the husband's
'e is him.., Applying this test to the facts of the case, he hetd that
behavioui,- *uking allowances for his illness, is
such that the wife cannot
rfor accordingly granted a decree
reasonably be expected to live with him. The court
ito nisi to the wife.
the

acknowledged that there may be dilliculty in determining

the the
It is however
..reasonableness" of' expJcting orr* upour. 1o endure the consequences of
a spouse' for instance'
md's
misfortune, such as physical oimental illness.sr't Should
*irour. a physical diiease such as epilepsy or supervening
impoten..tJn":::
;able
not easy qriestions t0 answer but in the English case of Thurfutw v' 'l hurlow3!?
-

Rees J. was of the view that in such cases ihe court

should take full account of
q5
the obligations of married life, including the normal
duty to accept and share, the
al or physical ill-healthof
lut a brrd.nJimposed upon the family because of the mental or
cannot reasonably be
-In one member. lf after all this, it is fbund that the plaintiff
granted.
ns of expected to live with the defendant a decree should be
'ders,
not be sufficient for
ished As a final comment on s. 15 (1) (b), one may say that it will
the plaintiff to prove that he is bored or disenchanted
with the defendant' neither
rged J' said in
was is it the case that evely cgncluct will be sufficient' Fr:r as Rooney'
'ed to Mombalav. Mombala375:
wii'e enahle a mariage to
nding "Thc Ast was not intended to condemn or punish a guilty spouse r:r
be dissolved mereiy trecause one partner has been
guilty of misbohaviour. There is stiil
: rvife as an institution
a nccessity to maintain a balanCe between the sanctity of marriage
sband

"t
ltr
ltlo:1 ? All E.R. 994 at p' 1004.
Sec Cretney, op. cit. P. 131.
tt'1t9t5i2 NI E.R.208.
'-'' ()p. ctr. al .il.
P.
 86

approved and supported by the State and the desires of the parties themsslves. It is not
therefore every act of misconduct that a court will consider sufficient'"

5.8 That the defendant has deserted the plaintifffor a continuous period
of at least two years immediately preceding the commencement of the action
- section fS {1) (c)

This fact has as its main element, desertion, a concept that was one of the two
grounds upon which divorce was granted at common law before the inception of
the Matrimonial Causes Act. Consequently, case law on it at common law will
play an important part in evaluating this fact as evidence of an irretrievable
breakdown of a marriage under the Act. There are two types of.desertion,
namely, desertion simpliciter (simple), and constructive desertion''-" although
there is no fundamental difference between the two.

5.8.1 Simple desertion

This corresponds with malicious desertion under common law and it is

committed y!re! 3 !po-"$_e- unjustifiably withdraws from.cohabitation with the
other with the inteniion of remaining apalt thereby bringing the marriage to an
end. There are four elements in this iyp. oi desertion:

(i) the de tacta separation of the spouses;

(ii) the animus deserend (the intention to desert);
(iii) absence of the plaintiffs consent and
(iv) absence ofajust cause.

The last two of the above elements are sometimes referred to as defences to
desertion where a spouse has the consent of the other to leave or has a just cause
for leaving the other spouse.

5.8.2 De facto separation

The plaintiff must prove that he and the defendant have actually separated. ln
Mctriswaneng v. Morut*on"og3z7 the plaintiff and the defendant lived togetter

3lt'
Howevgr, Hahlo has stated that there are four forms of malicious desertion, namely, acfual c*
physical desertion, constructive desertion, refusal of the marital privileges and sentence of dea*
or life imprisonment. In practice it is the first two which are invariably relied upon. See So;i:r
Afiican Law of Hushand and Wife, 4th ed. p. 391.
32t
MC No. I 7311982 (l?March 1984), unreported.
 87

fbr only three weeks after the marriage. They agreed that the defendant, who
was at school, should continue with her education bui that every school holiday
she should come to live with the plaintiff. The defendant did not live with the
plaintiff as agreed. The court ruled that on the evidence, the plaintiff has proved
that the defendant had deserted the plaintiff and accordingly granted the plaintiff
a rule nisi tor divorce.

The separation need not necessarily be liom the matrimonial home, for as Sir
Henry Duke, P. in the English case of Pu rttv. Palfurrf28 put it:

"Desertion is not a wilhdrawal from a place, but from a stale of things." 329
Furtherrirore, the separation can take place although the couple are still living in
the matrimonial home. Thus, in the English case of Hopes v. Hopes33n t-ord
Denning said:

"The husband who shuts himself up in one or two rooms in his house and ceases to have
anything to do with his wif'e is living separately and apart l'rum her as eilectively as if
they were separated by the outer door of a flat. They may meet on thc stairs or in the
passage way, but so they might if lhey each had separate flats in one building. If that
separation is trrought ahout by his fault, why is that not desertion? He has lorsaken and
ahandoned his wil'e as el"fcctively as if he had gone into lodgings. The converse is
equally lrue. If the wife ceases to have anything to do with or ibr, the husband and he is
leti to look after himsell in his own rooms, why is not that desertion? She has lbrsaken
and abandoned him as eff'ectively as if she had gone to live with her relatives... It is most
important to draw a clear line between desertion... and gross neglect or chronic discord.
That line is drawn at a point where the parties are living separately and apart, In cases
where they are living under the same roof th-at point is rcached when they cease to he
331
one household and bccome two households."

5.8.3 Animus deserendi

This may be inferred from the words and concluct of the spouse alleged to be in
desertion, to bring the marriage to an end. In this regard, the maxim "a man is
presumed to intend the natural and probable consequences of his acts," although

otn
1
t9?31 P.1B ar p. 21.
r2"
Smitk [19401 P. 49 and ltlaylor v. Naylor [1962] P. 253.
See also Srulrlr v.
rr" s+91 p. 227 at p. 3-3-5, see alio Hattingtt v. Hattingh t94S (4) S.e. ZZ 1Ny.
t
1

"' In Adeoso v. Adeoso [19811 1 All E.R. 107, it was said that thcs{r ca$es were 'invenled' to
accommodale the siluation where the spouses had ceased to communicate with one another
but still live hgether becauss they had no altemative accommodation. The law was said tt:
have been stretched a bit.
 t38

AU
a finding of the requisite intention'33?
relevant, is not always a safe gUiile to
must ie taken into account' It is
not
the circumstances of a particular case
importantthatthebeginningoftheseparationshouldbeaccompaniedbyan
intention to 6esert ;;"1*g Is when
thl case comes to court the plaintiff can
--""itir"ous period of two years which the two
adcluce evidence 9-u:ing
"t
elements were prese*. cur* law in England has.established that when once
interrupted because of the intervention
deserticn has starteJli i. not necessarily
forcei prevents the spouse physically
of compulsion or f;;;" ^-lurre (superior
always'that the intention to desert
is
fiom returning to "orrul#ior,, prouiorrt cf
shown to have continued, whether
tv poritiu. evidence. or by the absence
-For pr"rumption'ihat
the desertion, once establishcd'
anything ,n n"gutiu*'-,i.,. his wife and he is
continues to run.---i example,-where a husband deserts
If the husband is shown not to havc
later convicted and jailed for an offence. cntbrced'
ttrat trre separation,had become
changetl his mind, i" co* nor marter
There was a a, p,t" s'paration and
an animtts deserendi""u

5.8.4 Absence of consent

Wherethepartiesagreetoseparatethgrecannotbedesertion'onproofbythe
that the defendant had the necessary
plaintiff rhat the ;-pi; rtu* i.pu*ted and
to an end' the court is likely to
iil intention ta bring rii-r*tri*onial cohabitation unless there is evidence
come to u ifrut the defendant is in desertion
"on"turion leaving the matrirnonial home' such
that the plaintitf consented to the defendant
nol induce it' Also' the
conseilr, if given, ;;tt- real, in that fear or fraudlhould to
has gone does not signify consenl
fact that one spouse is glad that the other
,,Go if yoi like, and when you are sick ot-
**r;;;;:i: ;;;, ,,t]tement like Ho*"u"r' as has been pointed out by
her, corne back to ml'*3?;;gh consent.
Cfetney,theimporlanceofconsentasanegativefactor.indesertionismuch
,.living apart" proolrlon, r?. *"aem divorce law'337 In this
reduced by the "f
is pertinent' It allows evidence of spouses
regard, secrion riiiitAi"f t6e Act
least two years with the defendant's
living apart for * Joirinuous period of at of the marriage'
irretrievable breakdown
consent to be given as a fact evidencing

5.8.5 Absence ofjust cause

587 (W)'
33:
Benvennti v. Bent'enuti 1912{3J S'A'
r" Se . Beeken v. IJe''ken I l94t{l P' 301'
tt S*. rhe Engtish rur* of v' Drew (1lttt8) 13 P'D' 97'
]35 Ht*rimani. Harriman ""* [1s091P' 123'
3r{r
5*" Havilarttl v. Ha,-ilaid (1863) 32 L'J'P'M & A' 65'
trt Cretney oP' cit' P. 141'
 ftq

When desertion is established trul there is evidence that the defendant had a good
or just cause for leaving the plaintiff, this is likely to negate the desertion. Thus a
wife may tre iustified in leaving the husband who has committed adultery
otherwise she may be said tc have condoned the adultery."t The justification
required was explail-qd by Van der Heever, J. in the South African case of
Williams v. Will.iams'''"' as follows:

"To say thal desertion is not malicious requires special iuslification. Special justilication may
either be extra-ccinjugal or conjugal: extra-ccnjugal where, for example, a party concerned has
scme duty to third person$, for instance, where such a party has a sick parent or is herself ill and
has to have a holiday, or urgent business to perform... On the olher hand where the absence is
justilied on the ground r f conjugal relation il amounts 10 an averment that lhe other spouse has
been guilty.of conducl to justif] departure from the household..."

Also in the English case of G. v. G..la0 Simon P. said:

"...flrr example, a husband may be deported, or a wife may be senl to prison for life, each
such circumslance affurds good cause for separation, and in the ahsence of any further
circumstances ncither the husband nor wife ctiuld be termed a deserter. Similarly, il
seems to me that if the health of onc spouse dcmands a stale of isolation cr separation,
the law will be ilying in the iace of good sense if it were not to rccognisc that as
b affbrding justiflcation for the spouscs living separately..."

F.S.e Constructivedesertion

As stated above, there is no fundamental difference between simple desertion

and constructive desertion. However, while in the former case it is the spouse
who leaves the olher spouse who may be said to be in desertion, in the latter
case, it is the spouse who stays who may be said to be in desertion. The Privy
Council in Lai,g v. Lanfat explained the doctrine of constructive desertion as
follows:

"...it has been recognised that the party lruly guilty oI disrupting the home is not
necessarily or in all cases the party who lirst leaves it. The party who stays behind (lheir
Lcrdships will assumc this to bc the husband) may be by reason of ctxduct on his part
making it unhearable tbr a wifc with reasonable self respect, or powers of endurancc, 1o

1r8
Provided ofcourse that the oid bars to divorce have survived rhc 1973 Acr. Sec pp.174-175
inf'a. See also Nield v. Nield:l9i)8 T.S. 1113 and Edwards v" Edwards 1943 'I'.P.D. 309.
tt" 1944 o.P.D. 290 at p.2g2.
'o') 119641 P. t33 at p. 135.
tn'
1t9551 A.c. 402 ar pp. 417-418.
 90

breakdown of the
stay with him, so that he is the party really responsible for the
,narriage. He has deserted her by expelling her: by driving her out.'o

expressed a similar
Gorell-Barnes J. in the Engtish case of Sickert v. Sickerfa2
view when he said:

".ln order to constitute desertion there must be a cessation of cohabitation

and an
In most cases of deserlion
intention on the part of the accused person lo tlesert the other'
the guilty party actually leaves the other,_but it is not always
or necessarily the guilty
who i,nlends bringing
porti *nntaves the matrimonial home. In my opinion, the party
in ieality causes its termination' commits
thc cohabitation to an end, and whose conduct
the case of a husband
;; ;;t;i der"rtion. Theie is no substantial difference between
by leaving his wife and
*hu int*na, to put an end to a state of cohabitation, and does so
separate fiom him"'"
that ol a husband who wilh like intent otrliges his wif'e to

The conduct that may be taken to have caused the other spouse
to leave the
the other spouse
misbehaving spouse may be of two kinds, namely (1) ordering
behaving in such a way
lo leave or fnysicatly expelling the other spouse and (2)
making him to leave' In
that life becomes intoteraute tor ttre other spouse thereby
other spouse to leave'
the former case, it is not every order that will entitle the^
For as Simon P. said in the English case of l)T nv' Dunn3a3:
-
'

.....th€ wife told the husband to go, meaning that he should go- If tlrat overbore the
husband,s willingness to remain ln cohabitaiion so that in
effect he was expelled, the
husband was well
wifb shoukl be in constructive desertion. If on the other hand the
without being in effect
content to accept his wife's demand that he should leave.
In neithcr event was the
expelletl from cohabitation, the parting was a consensual one.
husband in desefiion.'."

past was called

In the latter situation, the conduct need not amount to what in the
be grave and weighty'
a "matrimonial offencen' unrjer common law but must
be, must exceed
The gravity of the behaviour, vexatious and trying though it may o'for
other spouse
that w*rich every spouse bargains to endure when accepting the
per se will be
better, for worse". fnt ordi.ruty weat and tear of married life
i"r"ffi"i.rt.3aa The intention, as shown by the above dicta, is to bring
the
the spouse misbehaving
marriage to an end. However, it is not settled whether
either that what he
has the requisite intention when he or she does not appreciate

ott
ilB9o1 P.778 atp.282.
'"3 J19671 Y.217 atpp.727-228.
,.. See Bttchler y. Buchler F947] P. 25 at p. 45. per Asquith L.J' and Ledimo v' Ledimo l94A
O.P.D. 65 at72 Per Van den Heever J'
 q1

or she is doing will lead to the other spgllse leaving or if he or she does, he or she
nevertheless wishes him or her to stay."ot The preponderance of judicial opinion
in England is to the effect that the intention to drive the other spouse away need
not bi present in fact.3a6 Thus in Lang v. LanfaT a wife was able to get a
divorce where the husband assaulted her, consistently abused her, forced her to
have sexual intercourse with him in circumstances described as "calculated and
revolting indignity" and yet he did not wish her to leave. However, in South
Africa tle courts have insisted on the proof of the intention to drive the other
Spouss out of the marriage . ln Froniman v. Fron"*on,3og afler cnunsel had
the case of Langv. Lang to the court, Colman J. said:
"it.d
.,The law, as I urrderstand it, is this: No conduct, however reprehensible, will constitute
constructive desertion unless the necessary animus is present. The animus may take the
torm of dolus <Iirectus in the sense of a positive intention to put an end to cohabitation;
or it may take the form or dolus eventualis in the sense of a knowledge by the defendant
that the probable or possible etfect of his conduct would be a tcrrnination of
cohabitation, coupled with a willul disregard of that possibility or probability. Th:
animus may be proved by direct or indirect evidence of the defendant's state of mind; it
may, in a ptop*t case, be infened from the circumstances, including the nature of the
defendant'i unlawful conduct. But, unless the animus is established by infcrence or
otherwise, there can, in my judgement, be no finding eif constructive desertion'"

q It is resp,ectively submitted that this latter view is to be preferred simply because,

a spouse who undergoes the treatment meted out to the wife in Lang v. Lang will
suiely be granted a decree on the fact that such behaviour makes it unreasonable
t6 expect the plaintiff to live with the defendant. On this submission, no harm is
drrne to a sp0use who undergoes the "Lang v. Lang" treatnent but is unable to
plove that the conduct was designed to drive her out of the matrimonial
relationship.

The following types of concluct have been held to amount to desertion:

3a5
For the academic views see Gi'ndhart (1961) 79 Lctw Quarterly Review 9B and Bates (1970)
33 Moclern Law Review I44.
tu,'
See Edwards v. Edwards [194S] I Alt E,R. 157, Lang v. Lang [1955] A.C. 402, 418',
Hall
v.Hall119621 1 All E.R. 1 and Saunders v. Saunders [1965] 1 AII E'R' 838'
3a'supra.
3tn
Ig72(4) S.A. 197 (T) ar p, 198. See also Feldmcn v. Feldman 1949 (3) S.A. 403 (AD) and
King v. King 1971 (2) S.A. 630 (O) at p. 635'
 v--

(a) Refusal to live wifh a husband despife agreement that the couple should live
anart while the wilb continues her education but cohabitation is resumed during
uocations.to'
the matrimonial
{b) Acting unreasonably in a decision on where to locate
h0me.tlso
i.j aAurttty by the defendant'3s1
a home or to support his wife'rs?
(d) Failure or a.t*iuni rr,Juna to provide
(e) ?hysical assaults.-''"
ig ntunr.*nbehaviour.s5a
ig) Refusal of sexual intercourse'3ss
are not to be taken as exhaustive
Itneeds to be emphasised that these examples
to desertion' Furthermore' the kinds af
of the kind of behaviour that may amount
conduct exhibited therein may also amount
t0 one that the plaintiff mal
nol
the plaintiff may have a thgice 9f
reasonably t* .*p*.t"d to pui up with, so
or under section 15 (1) (c) or in
bringing the action either un-der section is 1r; $)
the alternalive'

considered is that ths -de-sgrtion

The oti.rer element of this fact that needs to be
preceding th:
must have continued mole than two ye,afs immediatelythis provision, it
English equivalent of
commencement of the action. Under the
took effect must be
has been held thai the day on which thJ sepaiation which thc
-:<.t J"oifi- tr,ut the period must culminite on Jle day on
*i
petitionlanswer (in the of a cross-petition) was filed.357
"u.*
.I'he in dealing with actions under
courts may take the same view in this country
sccrion 15 (l) {c). lt must be said that the
effiiacy of this two-year period is
rendered n*gatory f:f tn, provision the same period for actions under section
15 (1) (d) where the defenbant may consent
'f
to the divorce' It may serve a belter
puryo$e if the periocl is reduced io one
year. The continuity of the two-year
cohabitation or, as will be seen
;;;i"J may be broken if isthe spouse.
'..iu**
presentiy, if th" d*t.ttion terminated'

1t"t
Mt r'rrswerreng v. Murusweneng tsp' cit'
3"t
Dunnv' Dnwt Ii94Sl 2 A1l E'Ir" 82?'
t5' 1ro.rt v. Ptrst 1935 N.P.D. 117.
Crrrsrlry v' Crossley 1912 W'L'D' 49'
tst'
tt' Lang v. I'ung xtPra.
it' Hoil v"Hull supra.
3i5
li969l r All E'R' 759'
SLru v. ,Slr.rn
t'" War v.W*rr 119?51 1AllE'R'
85'
,r, Alstonv.Alstonllg46ii aU g.n. 62andFatilknerv. Faulkner [194112 All E'R' 748'
 93

e
o
B 5.8.7 Termination of desertion

The defendant's desertion may terminate in any of the fcrllowing circumstances:

5,8.S When the spouses resume cohabitation

However there must be a mutual desire by the spouses to do so and full marital
relationship musl be re-established. In this connection, sexual intercourse
between the spouses is only a rebuttable presumption of such resumPtion of
cohabitation.3sB

)f 5.8.9 Supervening agreement to live apart

)t
)f Where the spouses have separated and they subsequently agree to stay separated,
n this will terminate the deserting spouse's desertion. The desertion.however is
presumed to continue without evidince to the contrary.3se

rIl 5.8.10 Supervening court order

IL

& This will release the spouses from their obligation to cohabit. Thus, a decree of
€ iudicial separation granted to either spouse will terminate any desertion try the
€ other spouse.360

5.8.11 Supervening animas revertendi

)I
1s When the deserting spouse repents and intends to come back to the matrimonial
rn home this will terrninate the desertion. The offer to return must however be
lr bona ftde and must be to resume cohabitation on a p€rmanent basis not a ploy to
II stultify possible proceedings for divorce. [n constructive deserlion, the deserting
n spouse must promise tc reform and must have the means to carry out his promise
ii his offer iJaccepted.36t If the deserted spouse refuses such banafde offer for
resumption of marital life, l're will himself be branded a deserter. As [-ord
Merriman, P. put it in the English case of fvcrittv. Everitf62 :-

i'n
Schroede, v. Schritetler 1959 (2) S.A 6 (N).
"t' Silton v.Si{tt:n 119391 P. 221.
16tr
Gt'inker v. Crinker 1940 W.L.D. 236.
-"" St:re-y v.storey
[19651 I Al1E.R. 1052.
ro?
1tl+9i ?.374 atp. 385.
 94

-.The unjustified rei'usal by the spouse who has been desefted to resume cohabitatir:n not
puts the
merely ierminates the desirtion but also rcverses the process: it turns the tables -
boots on the r:ther leg; and it is immaterial whether the case is one of mcre desertion
which is terrninable by a simple offer on the parl of the deserter to retrrn or one of
constructive desertion terminable, with moro tlifficulty no doubt, by appropriate
repentance and appropriate assurance of amenclment of such a kind, according
to the
individual circumstances, as the aggrieved spouse is not justified in refusing. To that, of
coufs$, must be added the qualification that in each case the question must hc
clctermined on its own merits."

Also, the offer must not be subject to unreasonable conditions. Thus in the
Nigerian case of llevbare v. Ilevbare,'tur the offer to accept the wife back
made

by-a husband, who was in constructive desertion, included, inter alia, conditions
that the wife "should be prepared to sweal any fo1111 of an oath that the husband
may deem fit; she stroutO legularly hand over her monthly salary to me in
acclmpaniment with a list of hir expenditure at the end of every working month;
all letters from her parents, brothers and non-relatives should be under my
censorship." The cout1, not surprisingly, held these conditions to be

unreasonable and the wife was justified in:reiuslng the offer to return.3t'a
The
onus of proving that the offer to return is genuine and hona;'ide seems to rest
upon thadefenJanq*t" for, as Bristowe J. said in the South African case of Derby
v'. Derbv:tbn

..H. which lhrows the onus of proving

1,fr. det'endant) is to blame t'or what occurrecl...
the honesty of his intentions now upon him."

5.8.12 Supervening InsanifY

It is recognised both by Engtish and South African laws that a spouse who
deserts *hilr of sound mind trut subsequently becomes insane ceases to be in
desertion at the onset of the insanity.367 The courts will almost certainly take this
view in this country but such a view may sometimes cause hardship to the other
spouse especially where there is ample evidence that, but for the insanity, the

ror
1tossiW.N.L.R.46 and l)unnv. Dunnllg4Sl ? Ail8.R.822' .
- ^.
return" (1967) 83
bee Dlun,tu. Iltmn supra and J. Tiley "Desertion and the bona fide ofler to
,,'*

I.aw Quarterly Review 89'

:os
tfr. Soutli African cases deal with showing c,ause why a rule nisi for rcstitution of conjugal
rights should not be turned into divorce where the defendant has failed to comply
with the order.
See Hahkr, op. cit. at p. 418.
1921 w.L.D. 2'7 aip.30, see also De Young v. De Young 1971 (2) SA 90 (C)'
306
tt't the South African case of Bo-*'i' aker v. Bowmaker 1946 N.P.D. 38-5 at p. 387.
See
 95

deserting spouse would have continued with his desertion. Thus in England, for
instance, the legislature has improved the effect of this by providing in section 2
(a) of that country's Matrimonial Causes Act 1973, thal a court may treat a
perio{ of clesertion as having continued at a time when the deserting party was
incapable of continuing the necessary intention if the evidence before the court
*oul.l, without incapacity, have inferred that the desertion continued. There is a
need for a similar provision in this country bearing in mind that insanity is not a
fact evidencing irretrievable breakdown of a marriage and even if the plaintiff
were to reiy on section 15 (l) (d), he needs the defendant's consent that the
insane defendant will lack the capacity to give.

F.*
'{iti

)
i
S

I
l
 96

5.gThatthepartiestothemarriagehavelivedapartforacontinuous of
period of at least t*o y*"* immediatily preceding the commencement 15
the action and the defendant consents to-a-decree
being granted ' section
(1) (d)

This provision enables the court to grant a divoree

by lhe consent of the parties
that the law is now based i:n the
and it has been described as the bestlustification
irretrievabl* nr*utiorun ni ,nurriog..tuo In
proving "living apart" fgr tfe
spouses was responsible tbr the
pulposes of this ru.i, it i* iirrt.oont itrictr of the
i*flotion. The fact that they are living apart is the determinant factor'
to be contrary to this statemenl'
However, the English case law on the point seem
was of the view that simple
In San/.r.s u. sorrror;litirr. Engrish court of Appeal
reCognition by one spouse that ths
separation was not enough. Th"r* must be
not be communicated t* the
marriage is over, althr:'lgh this recognition need
absurd results would
other. One reason io, .u:*ing to thi; conclusion was that
that will be contrary tt:
follow if mere physical ,*puriion were required because.
that the courts of
the reconciliation frouision of the 49t."0 lt is submitted
because there is' inter alia' na
Botswana should frtuOopt this view'371 This is
statute and as aptly put
equiuatent provision for reconciliation in the Botswana
evidcntial guides should
by Cretney, "un A"i**ch i, bu**d on sirnple clear-cut
mental states' A tactual
not be complicated by unnecessary uvestigation into
separatign gio", an justiciabie indicaton of breakdown"'372 Furthermore'
"*lty provision "flies in the face of the
the introduction ofl * ,o*tut element into this
statute and lhe intsntion of Parliament'"373

completely separate
Living apart for the puryoses tlf the provision envisages a
household and as *u"rt *" possibility exists, as
with desertion, for holding that
iir" ,pour"s ur* tluirrg apari althougi, liolng under the same
roof' The crucial
of life between the
question in that *.r*nibring whethei there is any community

v' PhtQsant 119721 | All E'R'

Cretncy, op. cit. p. 151. see Ormrod l's tl.ictum itt Pheasant
''('s

587 at pp.589-590.
il 11liit 2 All ij.R. 246 foilowcd in Noke v" Noke [19791 I]-LR. 109 ar p. 110.
in
rr" Section 2 thal pcriods of living logether up to six monlhs
{5) of rhe English Act provirlcs
living apafl and ir delcrmining r'vhether or
ali shoulil be disregartleci in calculating the period of
not it has been continuous'

seemecl to have accepted mere physical separalion as cnough'

." Op.cir. pp. 157-158, See also P.M. Bronrley "'l 'iving
ipart' in the law of divorce" ( 1972) 88
Law Ql$rterlY Re ,-iew 328"
r,.Sae J. Eekelaar Family Luw anrl Sctt:ial Policl' 2n" ed. Weide nlield & Nicholson' krndon 1984
at p.50. i
 97

spouses.374 In this regard, it was held in Baipidi v. BuipiclisTs that a physical

separation which was agreed and arranged, not for reasons of estrangement, but
an amicaLrle one, intended to accommodate the dictates of employment without
severing the marriage bond was not a living apart as contemplated under section
ls (1) (d).

The relevant time lbr computing the two-year period is the date of
commencemenl. ol the action3To

The requiremeni of the defendant's consent to the decree being granted

presupposss some positive act on his part showing agreement that the decree
snouta be granted. To facilitate this, rule 5 (a) of the Matrimonial Causes Rules
provides:

.'If thc action has been brought for a decree on the ground contained in section 15(1) (d)
of the Act, then tl-re plaintitf shzril athch to his declaration a document of conssnl as set
out in Form 1 in the schedule,"
I

In Moralong v. Morolong,3'7 Lesetecli Ag. J. held that the consent noted in the
i
minutes of a pre{rial conference does not satisfy the requirements of the Act.
I
The sai<l consent must be in the form of Form 1 in the schedule to the Act. As
.@ this requirement is peremptory, failure to comply with it renders the action
defective necessitating its dismissal.

The said Form 1 enables the defendant to signify his agreement to the granting of
'
: the decree by signing the consent document and returning it to the plaintiff with
T
an acknowledgement and full understanding of the consequences of such
I consent. This will only be meaningful if the plaintiff supplies the defendant with
the fullest information possible to enable him to understand the consequences to
him of consenting to a decree being granted. This is emphasised by rule 5 (5) of
the Matrimonial Causes Rules, which states:

f:'fn" plaintili's dcclaration shali also contain sufftcient information as will enatrle the
'det'endant to unclcrstand the consequences of his signing the document, and that the
n
qlelendant is not obliged to sign it, but that il he signs it a decree nf divorce may be
)r
pronounced in favour of the plaintiff."

t" See Morutcer v. Mouncer {19721I All E.R' 289.

"t 1zooo1 1 B.L.R,370.
"u Se" Dibatelo v. Dibotelo [19SBl B.L.R. 353.
ttt MC No. 9311991 {11'December 1997), unrepcrled.
 98

It is conceivable that the readiness with which the defendant will consent will
depend on satisfactory financial, property and custody arrangements that can be
reached between the spouses. Such agreement, if found satisfactory by the court,
may speecl up the proieedings.rts Section 16 of the Act also has a bearing on the
defendant's consent. That section provides:

..Where the court granting a decree of divorce held that the only fact mcntioned in
section 15 (1) on *hicit rhe plaintiff is entitled to rely in support of his action was that
mentioned in paragraph (d), it may, on an application made by the def'endant anytime
hefbre the rule is made absolure, rescincl the rule if it is satisfied that the plaintiff misled
the rlel'endant (whether intentionally or unintentionally) abr:ut any matter which the
defendant took into account in deciding ttl consent to the grant of the decree'"

This provision reinforces the statement made earlier on that the defendant should
be supplied with the fullest information possitrle in the circumstances in order for
him fo make an informed judgment whether to grant the requisite consent or not
and if he does, to appreciate the full import of giving the consent. An interesting
question that may bi posed is can the consent' once given, be withdrawn? On
principle there is no reason why the consent cannot be withdrawn. The operative
beadline for giving such consent is the time for the grant of the rule njsi'
Consequentty, ttre det'endant rnay withdraw his consent before the grant of the
rule nisi. itrir i* the case under the equivalent provision in the English
Matrimonial Causes Act.37e The test whether the defendant was misled or not is
a subjective one taking into consideration whether or not he considered the
matters about which he was misled'

5.10 Bars to divorce

Before the inception of the Matrimonial Causes Act 1973, there were various
factors (sometimes described as defences), the proof of.gn" or mofe of which,
may bai a plaintiff from being granted a divorce.''n" Such factors like
condonation, connivance and collusion were bars to divorce. The Matrimonial
Causes Act did not expressly abolish them. Did such factors therefore survive
the new law? If one adopts the interpretation principle that the legislature does
not intend to make a change in the existing law beyond that which is expressly

tt* Se" {br example, Monametsi v. Monametsi supra where the court was of the vicw that "The
ttgreement pit before the court is in general reasonable and acceptable". It theretbre
incorporated the agreement as part ofthe order ofthe court'
3t" S"e Bales v. Bales
1191212 A11 E.R. 667.
3*"
See Hahkr o;r. cir. at pp. 368 et seq and399 et seq.
 99

1l stated in a new statute,lsl then the answer to the question will tre that such factors
e survived the new Act. However, since the 7973 Act shifted the emphasis in
L divorce proceedings from fault-based to irretrievable breakdown of the marriage,
e it is submitted that the former bars to divorce are antithetical to the rationale
behind the Act and should be taken to be no longer applicable. ln Baitsile v.
Baitsile3sz the court, while not expressing an opinion on a divorce action
n supported by facts contained in section 15 (a), (b) or (c), held that in cases of an
lt action based on section 15 (d), the adultery on the plaintiff s part did not impede
ie
A
her claim for divorce neither did it require the condonation of the court. It is
U
submitted that the utility of any bars in the present divorce law is doubtful for as
€
the English Law Commission rightly pointed out,383 there will be no relevant
offence to connive at, conduce or to candone in the new dispensation.
Cr:nsequently, bars to divorce have been abolished in England.3sa However,
d
despite this situation there are two possible submissions that a defendant may
)r
advance in defence of an action for divorce. These are (a) that the plaintiff has
)t
o failed to prove any of the facts mentioned in section 15 (1) and (b) that despite
proof of one or more of those facts, the court should not hold that the breakdown
n
-e is irretrievable.
;
L

te
5.L0.1 Failure to prove any of the facts specified in section 15 (1)
;h
Matrimonial Causes Act
.(.+.
Ls''9
The plaintiff bears the burden of satisfying the court that there exists one or more
Ie
of those facts thaf make the marriage irretrievable. The subsection forbicls the
courl to hold a marriage to have broken down irretrievably unless it is satisfied of
the existence of one or more of those facts. Consequently, if the plaintiff fails to
discharge this burden thrust upon him by the subsection, the action will be
dismissed. Thus, in Khamane v. Khamaft€,18' Rooney Ag. C.J. said:386
IS
"Taken all in all it will appear that this coupie are ill-matched. There is little possibility
h.
of their rc-estahlishing a matrimonial home. But, the point at issue is - was the
behaviour of the defendant of such a nature that the plaintilf cannot reasonably be
al expected to live with him? Nothing more has been proved against him than twcr assauhs
:e
and threats prompted by an unreasonable jealousy. Such conduct is nor beyond
]S
h' t*t See the English case of Leach v. R. [19121 A.C. 305 per Earl of Halsbury.
3n2
Stolv1B.L.R. 1i l.
L, 'ttt See para. 18 Relorm of the Grounds of Divorcc: The field ttf Choice (Lrw
Com. No. 6
(1e66).
tto
S"" section 9 and schedule 2 of the Divorce Relbrm Act 1969.
t" op. cit. s,,pra.
3r" hirj. p.
ai 2-5.
 100

urged to refuse
5.10.2 Froof of facts specified in section 15 (r) but court
divorce
by the subsection
As indicated earlier, the proof of any of the facts specified
irretrievably' Withoul
;;- a presumption that the maniage has broken down
.*i*ry'rrriderrce the court is likely to hold that is the case' The defendant'
ol adducing evidence
following normal evidential practice, then beats the burden
that contrary to what the plaintiff says, the maruiage. .is far
from being
the court is as
irretrievably brcken down. Ii he were to adduce such evidence
the court, by the
likely to fi;d for him as it will ftrr the plaintiff. It is the duty of
can, into the facts
telTns of section 15 t?\ to inquire, at fot as it reasonably
section 15 (3) says' it is
aliegecl by the pl*intfii and by the defendant and if, as
unless it is its view that
satisfied on the evidence to giant a rule nisi for divorce
the marriage has not broken io*o irretrievably. Finally
though, it is the plaintiff
who will lose if the evidence is found to be unsatisfactory.

rnt See al*o Mbish v. Mbish MC 101/1989 (14 April i9,32) unreported and Melamtt v' Mekrmu
lresTl B.i-.R.310.
 101

CIIAPTER SIX

JUDICIAL SEPARATION
Judicial separation originated fiom the English Ecclesiastical Courts at a time
when divorce decrees were not granted. Rather the courts granted decrees of
divrtrce a mensa et thoro (divorce "from bed and board"). These decrees were
later renamed decrees of "iudicial separation".388

The jurisdiction of the High Court to grant judicial separation is the same as that
fbr divorce.3se The relief may tre npplied for by a plaintiff who, for example
trecause of religious beliei is unable to apply or countenance the idea of a
divorce or try ons who cannot wait for the specified period to elapse before
applying for a divorce. The frequency by which parties resort to judicial
separation as a remedy for their marital problems is difficult to ascertain but it
can be speculated that notmany people use this type of judicial relief to resolve
their marital problems. Its practical utility therefore can be said to be doubtful.3e0

Unlike in the case of divorce, the Matrimonial Causes Act 19?3 cloes not specify
the ground lor granting relief by judicial separation. It will therefore be assumed
that the common law grounds apply. At common law the relief is granted for
good cause. and not by reason merely of the consent of the spouses. Hahlo3el
@ states that the plaintiff must show the following:

(a) That further cohabitation with the dcf'cndant has become dangerous or
intolerable for him or her, and
(b) That the unlawful conduct of the defendant caused this state of affairs.

Thus two conditions must be fulfilled, namely, unlawful conduct by the

defendant concerning the plaintiff and such conduct making further marital life
dangerous or intolerable.

t*t
S"c Crclney & Masson try. cit. aL p. .385.
t'" S". s. 7 Matrimonial Causcs Acl 1973.
t'* This lype
ol relie f has been abolished in South Airica by s. 14 of th* Divorce Act ltj of 1g79.
]')t {}p.cit.
p. 330. in England the relicf was introduced in 1857 to replace the ecclesiastical
decree of divorce a tnensa et thora which was grantcd on thc grounds ol the delbndant's aclulrery
or cruelty or in lhe case of a wit'e piaintitl, on the grounds of the husband commission of rape or
an unnalural ollcnce. Under s. l7 of that counlry's Matrimonial Causes Act 1973, lhe grounds
on which judicial separation may be granbd are the same as those ol divorce.
 102

6.1 The necessary conduct

The conduct need not amount to a criminal offence trut must be a matrimonial
offence.se? Any conduct calculated to injure or hurt, mentally or physically,
which does injure or hurt, seriously having regard to the type of person
concerned will be sufficient. The defendant's conduct must be the sole cause of
the state of danger or intolerability in which the Plaintiff finds himself. Thus,
where both spouses are equally to blame, the decree will not be granted. The test
to be applied in determining whether the conduct of the defbndant is such that
further cohabitation is impossible is a mixture of subjectivitv and objectivity. In
the South African case of Drffilv. Driffi.llle3 Selke, j. said:-ie

"A plaintiff must show not merely that furlher cohahitation would be intolerable to the plaintiff
but that it would tre intolerable to any reasonable ancl righrminded person circumstanced as the
plaintiil is."

The burden is thus thrust upon the plaintiff to adduce evidence to the effect that
cohabitation has become dangerous or intolerable owing to the unlawful conduct
of the defendant and in this regard the conduct must be shown io have persisted
over some length of time before it can be said that it has made life in common
dangerous or intolerable for the plaintiff. An isolated act of cruelty will not
suffice. Thus in Pfaffr. ffig:'ts a South African court held that a conviction of a
spouse of a "public offence" r.r'as insufficient to enable the grant of a judicial
separation order unless the offence was committed against the other spouse. It is
submitted that conduct, which a plaintiff in a divorce action cannot reasonably be
expected to live with, should also be sufficient tbr the purpose of granting a
judicial separation decree.

6.2 ElTect of a decree ofjudicial separation

The effect of a decree of judicial separation is to release the parties to the

marriage from their obligation to cohabit without dissolving the marriage. Thus
neither party can remarry while the decree subsists and if one of them commits
adultery, the other is still permitted to claim damages from the other's paramour.
However, the fact that no consortium exists will be taken into account in

t'?
Sce Buchting v. Buchling t90g T.S. 7L3 atp.714.
''' lg42 N.P.D.345.
3t''
Ib*J at p. 355.
r"5
11909y 26 s.c.z2J.
 1U3

assessing damages.3eo Since the obligaticn to cohabit has been suspended, a

husbancilould be guilty of raping his;ife.3e?

Generally. ihe decree does not aulomatically affect the legal capacity and
propertyiights of the spouses']ss buf there are exceptions' For example, the wife
lao no"toig"r pledge irer husband's credit in respect of household necessaries
unless he is liable tJsupport her and has failed to do so. However, the
plaintiff is
at liberty to apply to ttre couft lo vary the proprietary rights of the parties' The
order, tit<ety io be made,^will depend on whether the marriage is or is not
in
community of property.tjnn Thu*, in Shaucti v. Shau6fa0, the court held that
though the community of property was not dissolved by a decree of judicial
sepaiation, the practicil reaiity in the circumstances of the case was that it
would
be reasonable and fair to divide the joint estate. Accordingly, the
joint estate was
divided among the Parties.

"t' See Crauntllantl v. Growtdlsnd and Alger 1923 W.L.D' 2i7'

t"t See R. v. Clarke
[19491 2 All E'R' 448'
'ren
Soe the South African case of .Ex pa rte Durbucl11948 (2) S'A' 410 (E)^
lee
See Hahlo op. cil. at pp. 335-35{1.
t"" 2I3.L.R. 163.
120031
 104

CHATTTER SEVEN

NULLITY OF MARRIAGE

Nullity proceedings are undertaken to declare that because of an initial

impediment, what wasthought oJ as a valid Ptt:q: Y:t:t:Ii--::::T::"i:::
declaration that there has never
no marriage at all. Thus a nullity decree is a
been a marriage.

of a nullity decree' They are

Two types of marriages are likely to be the subject
However, a void marriage is a
those that are void ;d those that are voidable'
the marriage ceremony created no
contradiction in terms since it means that
although imperfect in some way' is
marriage at all whereas a voidable marriage
stepJ to have it annulled. l,ord
regardecl as a marriage until one party iate
Greene in the Englisf,case of De Reneville
v' Di Renevilleaar admirably stated
the distinction between the two as follows:

.,A void marriage is one that will be regarded by every court in any case in which.the
having taken place. and can be so treated by
existence of fhe maniage is in issue as never
annuiling it: a voidable marriage is
both parties to it withoit the necessity of any decrJe-
a valid sut'rsisting marriage until a decree
one that will he rcgarilecl by every "ourt ui
jurisdiction'"
annulling it has been pronounced by a court of competent

The following are the effects of the distinction:

to
(a) The validity of a voidable rnarriage can only be challenged by the parties
interest in the validity of a void
the said marriage whereas any person with an
marriage can challenge the same'.
to seek a decree
(b) There is no neeifor the parties to a void marriage actually in certain
of annulment from the court; although such a <iecree may be necessary
marriage wishes t0 femarfy' In
situations, fbr example, when a party to such a
must seek a court decree for its
contradistinction, parties to a voidable marriage
annulment.
brought during the
(c) The action to set aside a voitlable marriage must be
one of them bars action to
lifetime of both parties to the marriage. The death of
hand can be impeached even
annul the marriage. A void marriage on the other
afte r the death of one Party'

1{)t p" 100 at p. 111. See aiso the South Aiiican case of Ex parte Oxtan 1948
(l) S'A'
119+g1 law and
A in cornparative
10ll (c) at p. 1014 and E.J. Cohn "'Ihe nullity of marriage: study
tegot .efotm'; ( 1948) 64 Law Qaarterly Review
324' 533'
 144 105

(d) Whereas a wife automatically acquires the husband's domicile if the

marriage is voidable, the same consequence does not follow if the marriage is
void.
(e) A dscree issued for a void or voidable marriage is the same but it has a
itial retrospective effect in a void marriage while it takes effect from the date on
was which it became absolute in a voidable marriage.
)ver (f; the doctrine of approbation or insincerityao2 under English law operates as a
bar to the action for annulment c,f a voidable marriage but does not apply to a
void marriage. This will probably be the case in this jurisdiction as the
afe provisicns in the Matrimonial Causes Act dealing with nullity of marriage are
isa analogous to those of England.ao3
no
', iS 7.1 GRQUNDS RENDERING A MARRIAGE A NULLITY
ord
rted Section 22 (I).of the Matrimonial Causes Act provides that a husband or wife
may bring an action before the High Court that his or hei mariage be declared
null and void on the grounds mentioned in subsection (2) and (3). ln Gaobotse
the
v. Gaabatsea0a Gaefele Ag. J. hekl that section 22 (l) is a blanket cover so far as
lbv
eis
a declaration of nullity is concerned to those marriages which are void or
Tee
voidable. It does not restrict a party to the use of the words uuvoid" or "voidable"
in his or her prayer in the Declaration. In that case, the husband instituted an
action for a declaratian, inter alia, that:
@'.r,

"The defbndant, at the tirne of the man'iage was without the knowledge of the plaintiff
permanently incapable of procreating children and fraudulently concezrled such fact from
to
the plaintilf."
rid
"ln the circumstances the plaintiffs marriage to the def'endant is void and is in law a
nullity."
:ee "A cause of action has thus accrued to the plaintiffto sue the defendant for a decree of
dn nullity declaring the said marriage null and void.
In ..WHEREFORE THE PLAINTIFF PRAYS FOR:
its (a) an order declaring the plaintitf's maniage to the defendant null and void..."

he
to 't'? This doclrinc is to thc effect lhat a plaintiiT whose conduct hari led the def'endant reasonably
en
to believe he would not seek lo annul lhe marriage, having been aware o1 all lhe relevant l'acls
upon which tlre marriage could be annuiled, would not be permitted subsequently tr: challenge
the validity of lhe marriage as this will be most inequitable and contrary to public policy. See
lhe English cases of G. v. M. [18851 10 App. Cas. 171 and lV. v. W. il9521 P. 152.
tu3 'lhe
position in South African law is nol settled. See Hahlo op. cit" p. 489, Pretorius v.
.{ Pretr-trius 1948 (4) S.A. 144 {O),Turkv.Turk 1954 (3) S.A. 971 (W) and Ngobeniv.Gihitwa,--o
nd
1e46 (2) P.H.B. s8 (w).
1{B
MC Ni;. 59/1995 {i I August 1995). unrcported.
r
j

106

The defendant filed an application for the action to be struck out on the ground
the plaintiffs Declaration did not disclose a cause of action because in terms of
section 22 of. the Matrimonial Causes Act it should have stated specific grounds,
which in the plaintiffs case appear to fall under section 22 (2) (a) (b) and (c).
The court held that the objection of the defendant was a misconstruction of
section 22 in that an action to declare a marriage null and void was not limited to
the provision of section 22 (7) only. It is clear that section 22 (L) allowed an
aclion to be brought on any of the grounds specified in subsection (2) and (3).
Accordingly, the ground in section 22 (3) (e) to the effect that at the time of the
marriage either party to the marriage was impotent, could be incorporated in the
plaintiffs Declaration. The objection was therefore overruled.

The grounds provided in section 22 seem to retlect those provided in the English
Nullity of Marriage Act 1971 and provide for both void and voidable marriages.
These will be looked at seriatim.

7.2 Yoid marriage

The section provides in subsection 2, regarding void marriages, the following:

A marriage shall be void on any of the following grounds -
(a) that the parties to the marriage are within the prohibited degrees of
consanguinity and affinity as provided in section 18 of the Marriage Act,
% (b) that the former husband or wife of either party to the marriage was living ai
the time of the marriage and the marriage with such former husband and wife
was then in force;aos
(c) that the rnarriage is invalid under the laws of Botswana.

Ground (c) above has been criticised for being clumsy because of its introduction
of the term "invalid" besides "void" and "voidable", terms that have fixed
meanings under common law.a06 The clumsiness introduced by this ground has
further ck:uded the uncertainty surrounding the legal effect of a minor's marriage
without the consent of his guardian. In South Africa, the general view, which
has now been confirmed by statute, is that such a marriage is voidablea0T Can
this type of marriage be now challenged on the ground rhat it is voidable bearing

ot'5
Osmant. Osman [199011].L.R.271.
See
*"t'See
Himsworth, ap. cit., at pp. 178-179. This criticism notwithstanding, the courls seem to
treal such marriages as voidable - s*e Tumagole v" Tumagole, MC No. F97l1987 (7 July 1983),
unreported.
t"t
See Hahlo op. r:it. at p.93. See also s. 24A of the Marriage Act 25 of 1961. This secfion was
inserled by section 34 ol the Matrimonial Property Act 88 of 1984.
 107

in mind that the grounds fr:r rendering a marriage voidable do not include a
minor's marriage without parental consent? Are such marriages void because
they are "invalid" under the laws of Botswana? It is submitted that the
subsection was a safety device to cover other cases where, through the
incorporation of the English nullity legislation, the draftsman may have
unwittingly rendered nugatory. To avoid this, the draftsman should have
carefully considered the pre-existing law befcre enacting thegrounds of nullity
instead of the wholesale importation of the English statute. \An amendment of
the grounds tbr rendering a marriage voidable, by the inclusion of a mariagc of
a minor without parental consent will be in order. Meanwhile, the court will be
urged to treat such marriages as voidable in conformity with the preponderance
of academic and judicial opinion on the point in South Africa before thc statutory
inlervention.4oR

Another factor that was not taken care of is the modern scientitic phenomenon of
sex change operation by which a person born biological male may be
transformed to a "female".40e What happens if such a person goes through a
marriage ceremony with a man? It is sutrmitted that although there is no legal
provision at present in Botswana to deal with sr.rch a situation, such a marriage
will be dec\ared void ludging irom lhe trends in other judsdrctions, for exampl.e,
Englarrd and South Africa. The omission of this phenomenon from the
Matrimonial Causes Act is perhaps recognition that Botswana is yet to be
affected by the phenomenon ot is a case of a rare exception of adapting English
law to local conditions?

Apart from the above factors that may afl'ect the validity of a marriage, there is
the general principle that flre lex loci celebrationis, that is the law of the place of
celebration oi the nrardageil0 govens the forma\ validrty of a matriage.
Different legal systems provide fi:r different formalities that must ire cornplied
with to make the resultant marriage valid. For example, section 3 of the
Marriage Act provides that no marriage shall be valid unless within a period of
not more than three months betote its celebration banns have been published in
public for three successive Sundays either in a church or an ofTice of an

r{}rr
See Hahlo op. cir. (4't'ed.) at pp. 91-95 ancl Boberg (1977) at pp.622-(t37.
4i)'r
Sse the English Matrimonial Causes Act 1973, s. 1l (c) which pruvitlcd that a marriage shall
be void if the partics arc not respectively male and f'emale and the case of Corhett v. Curbetl
(Arse Ashley) [970] 2 A11 E.R. 33. See also the South African case nl W. v.ll. 1976 (2) S.A.
308 (w).
'"'See Kahn in l{ahlo crp. cit. pp. 585-598.641.
 108

has been obtained' Non-compliance

administrative officer or a special licence
void'
with this requirement will re;der the marriage

7,3 Voidable marriage

Section:./,Q)oftheMatrimonialCausesActprovidesthat,subjecttosubsection
shall be voidable on any of the
following grounds:
(4), a marriage

(a)thatthemarriagehasnotbeenconsummatedowingtofliewi]fulrefusalof
ji. rn" salient aspects of this ground are as
rhe defendant ro &;*;;;.
lbllows:

7.3.1 Consummation

Amarriageissaidtohavebeenconsummateclwhenthespousesengagein
sexual intercourse for the firsl time
aite' tfre marriage'alr Pre-marital sexual
unJ irr*t*oant for ihit putputt' Tt
**"11
intercourse is therefore insufficient jt must be "ordinary ancl
intercourse to be sufficient to .onr**ui"
the maniage'
incomplete:dr2. ln this regard full
complete intercourse, not partiat -and and it is
penetration of the i.*ur, orgun by
the;;;;g;- must be achievedar3 The sole
irrelevant that pr'creation ii no'
po"ibie tV. !u1fr full lenetration'
intercourse'ato There must be an
determinant tactorls tle ability to
have
"*uul
erectionandpenetratio,,io,areasonablelenglhof!3?forthesexualintercourse in England
ro be regarded ":":ililr""'id;"-il- :":ltctle .fecisions
the deliberate withdrawal of the
penis
whether the practice of. ioitus interruptus,
trom the vagina before ejaculation,
**y o, may not amount to consummation'alt'

7.3.2 Wilful refusal

IntheEnglishcaseofHtlrton'v.Hortan,l,ordJowittL.C.explainedthemeaning
r7
oi :*ifzuflefusal' as foliows:a
v' Dretlge-119411 t A118.R.29.
"' See the English cas* t>t Dreelge
o't s*. a-e i rs'g (1s45) 1 Rob' Eccl' 279 at p' 29t1 per Dr. Lushington and Snowntatt v'
Snawman [1934]P' 186'
*t3 v' All E'R' 178'
W. [1967j 3
S"" W.
i A1l E'R' 387'
''* See Baxterv.Buxter [1947j s'n" I le4 and w' v' w' supra.
'" ;;; R. v" R. 119-521 t nu
White v' white $sagl P. 330, cf'
Grimes v' Crimes
+'u
5"* C(tcketl"v^ Cickett U9501 P' 253'
f194Sl P.323'
+i't All E.R. 871.
1t9471 2
r08 109

ace
"Tlre words connotet I think, a settled and definite decision come to without just exeuse!
ancl in determining whether there has been such refusal, the judge should have regard to
the whole history of the mariage."

Thus in Potter v. Potterals, an English court refused a wife a decree because the
husband's failure to consummate was due to a natural and not a deliberate "loss
lon
of ardour" after a prolonged history of sexual difficulties. Also in Baxter v.
Baxtelle it was held that the wife's refusal to allow intercourse unless her
husband used a contracepiive sheath was not a refusal on her part to consummate
loi the maniage. The word consummate is to be given its meaning in common
:AS
parlance. Novertheless, Bromleyo'0 has pointed out that this may create a
ditticutty that may not easily be resolved. For exarnple, rf the mardage remains
unconsummated trecause a husband refuses to use a contraceptive sheath and the
wife refuses to let him have intercourse unless he does so, can it be said that
either of them has refused to consummate the marriage? lt is respectively
le ln submitted that Lroth attitudes come within the meaning of consurnmation as given
:xual
\n Baxter in thx each is prepared lo consummate, by the wife with the use of
xual contraceptive and by the husband without it.
r and
tulr For there to be a refusal, there must be a request for sexual intercourse, direct or
litis implied, and the opportunity to comply with such request must exist. Mere
r sole
neglect to comply with a request is not necessarily the sanne as a refusal. A
be an
refusal implies a conscious act of volition.a?r
ourse
gland
7.3.3 Just excuse
penis
,n.416
Where the defendant has some just excuse for refusing to consummafe the
marriage, the plaintiffs action will fail. Thus in Kaur v. Singha?2, the parties
belonged to the Sikh religion and went thrcugh a civil ceremony in a Registrar's
office. There was an understanding that there will be no cohabitation until the
nnlng
husband has arranged a religious ceremony. The husband refused to make the
arrangements. The court held that the wife was entitled to a nullity decree on the
ground of his wilful refusal lo consummate the marriage. Similarly, in Jodla v.

*'n Family Law 161 (CA).

119751 5
at')
op" r:it.
alt)
rimes Family Law 6th ee'I,, l,ondon, Ilutterworths, Igltlal p. tt7.
tt'
[1954] 3 All E.R. 7.
See S. i,. S.
o" Al E.R. 292.
1tslz11
 110

JorJlaa?3 a refusal to arrange a Roman catholic ceremony was held to amount to

wilful refusal to consummate.
to have sexual
Once a marriage has been consummated, any subsequent refusal
intercourse will not be a ground for a nullity decree. However,
it may be
live with within the
behaviour that the plaintiff cannot reasonably be expected to
breakdown
meaning of section 15 (1) (b) and thus be evidence of an irretrievable
of the marriage requiring a divorce decree'

(b) That at the time of rhe marriage either pafty to the marriage
(i) was of
unsound mind, (ii) was a mentaliy disordered or defective
person within the
to such an extent as
meaning of the Mental Disorders Act L971", of such a kind or
to be unfitted for marriage and the procreation of children or (iii)
was subject to
recurrent attacks of insanity or epilepsy'

Any of the above ailments must exist at the time of the celebration of the
mairiage. If they arose after the celebratitln of the marriage they will
not affect
the vaildity of lhe marriage and the aggrieved spouse,must seek
relief in divorce'
described the nature
Singleton L.l. ln the English case of In the Estate of Park*'"
of the mental capacity necessary frrr marriage as follows:
.,was (the parf alleged to be insalre on the date of the ceremony) capable of
understanding the natrie of the contract into which he is entering,
or was his mental
condition such that he was incapable of unclerstantling it I To ascertain
the nature of the
contract of marriage a man *u*i b* mentally capable .f appreciating
that it involves the
respi:nsibilities normally attaching to maniage. Without that degree
of mcntality' it
is the test..-"
cannot tre said that he understands the nature of the contract. That

that will
However, insanity in this conlext may be extended to cover the type
manage his
make a person who, judged by the ability of the reasonable pelson to
affairs, is incapable'oi *uo"grng himself and his affairs or is a danger to himself
in which
or others or is unable to conform with the ordinary usages of the society
h; ;";;r.-2, The distinction between these two types of insanity is blurred and
has been judicially criticised.a16

*?3
gt96o1 I All8.R.625.
or'
1to5+1 P. 1 l? at p.
i36.
*2t b*c ,e"tirrn 2 Mcnral Disorders Act 1971 and the English case of Whysallv' Whysall lt960l
?.52.
..,, See Benneu v. Bentrcu [1969] 1 All E.R. 539 at p. 541 per Ormrod J. (as he then was)'
 111

(c) That the defendant was at the time of the marriage suffering from venereal
disease in a comrnunicable form. Will this ground extend to the prevalent
Acquired Immune Deficiency Syndrome (AIDSX On the literal interpretation of
venereal disease as one communicated by sexual contact, it is subrnitted that
AIDS will fall within the ambit of this ground.

(d) That the defendant was at the time of the marriage pregnant try somc person
other than the plaintiff.

In Matsholwane v. Matsholwaneo21 the plaintiff sought a decree of nullity on lhis

graund. The defendant did not deny the contention that she was pregnant and
did not reveal this to the plaintiff but averred that the plaintiff could not rely on
this ground since he has ratified the marriage by having s-exual intercourse with
her after learning that she was pregpant by anoth"r man.n'n The court held that
the burden was on the defendant to prove the ratification of the marriage and
since on the evidence she had failed to discharge this burden, the decree was
accordingly granted to the plaintiff. In this type of cases, the use of a blood test
will be particularly helpful but it is doubtful whether a party can be compelled to
unciergo such a lest.ale

It must be emphasised that if the wilb was unaware of her pregnancy when he
entered the marriage with her husband, this will not preclude him from bringing
the action to annul the marriage.ot" Also the husband having sexual intercourse
with the wife before their getting married will not preclude the action for
annulment.a3I

(e) that at the time of the marriage either party to the marriage was impotent or
incapable of consummating the marriage. This ground involves the inability to
consummate the marriage though the will to do so exists. This is in a
contradistinction to wilful refusal to consummate which involves a definite and
settled decision come to without just cause not to consummate though the ability
to consummate exists. For the plaintiff to succeed, he must show that the
incapacity is incurable or if it is curable, the remedial operation will be

art
MC 71t975 unreported, High Court l-obatse Rooncy A.C.J.
arlsee section 22 (4) r:f the 1973 Act, which provides {br this de I'ence.
rt"
C1. lhe posilion in England where llris is possible un<Jer s. 20 of the Fan:rily Law Reform Act
1969 in paternitl, cases. In South AJiican law there.is no compulsion - see E)'nonv. Dutoit 7927
c.P.D.76.
''t" See tlahlo op. cil. at p. 504.
*t' Sr. Waltersv.lYalters 1911TPD 42atp.46.
 t72

dangerous or that though not dangerous the defendant refuses to undergo such
opeiation. Thus in D-e v" A-g,out there was evidence that a further operation on
the wife could not be done without the danger to her lit'e, the court found that she
was practically incapable of consummating the marriage. In l. v. t . (Jalsely
cattid W),ot' Sir James Hannen P. found that the marriage had not been
consuillmated through the incapacity of the wife. He added these words:

.,The difficulty might perhaps be overcome if the lady would undergo an operation"
which would probably be successful. But the court cannot compel hcr to submit, and the
R.,
man can only b,e expectcd to take all reascnable means to persuade her' This he has
<ione, an6 she has distinctly refused, I therefcre make a decree nisi for nullity of the
marriage."

,,.} S. v. however, the court dismissed the husband's petition because the
.S.u3u
necessary operation has been undergone by the wife rendeting her capable ot
consummating the mariage. Thus the test on this ground is the practical
impossibility of consummation whether arising because of the cangenital defect
or caused by accident, illness, self-mutilation or arising out of physiological
t'actors. l.ord Penzance in G. v. G.435 put the proposition as follows:

"'lhe invalidity of the rnaniage, if it cannot be consummatetl on account of some

structural clifficulty, is undoubted, but the basis of the interfsrence of the court is not the
structural defect, hut the impracticability of consummation. If, thcrefors, a cass presents
itselI involving the impracticability (although it may not arise tiom a structural defect),
fhe reasnn ibr the intsrference of the court arises. The impossibility must be practical. It
cannot be necessary to show that the woman is so forrned that connaction is physically
impossible if it can be shown that it is possibie only under conditions to which the
huiband wculel not be justified in resorting. The absence of a physical slructural defsct
cannot bc sufficient to render a marriage valid if it is shown that connection is practically
impossible, or even if it is shown that it is.only practicable after a remedy has been
opptieO which the husband cannot enforce, and which the wife, whether wilfully or
acting under the influence of hysteria, is determined not to submit to."

The incapacity or impotence must be in existence at the time of the marriage, if

this occurs subsequently it would not serve as a ground for annulling the
marriage. Furthermore, the issue is ability to have sexual intercourse, therefore if

ttt (-)p. cit. supra.

"t 1t88217 P.D. 16.
o3'
1t95+i 3 All E.R. 736, Joshua v. Joshua 1961 (1) S.A. 455 (O.w.) and Srritfr v. .Stnitft l96r
t4) s.A.72e (s.R.).
435
1ta;t1 L.R. 2 P. & D.28?.
 113

this is possible, the fac-t_ that one spouse is sterile or barren is no ground for
annulling the marriage.a36

(0 that the consent of either paily to the marriage was obtained by force or
fraud.

In the English case of Szec hter v. Szechter,437 it was said that:

["Wn"r* a formal consent is brought about by fbrce. menace or duress - a yielding of lips,
not of the mind - it is cf no legal effect'"

$dJnder this ground such lack of genuine consent will render the marriage
voidable. The plaintiff must show the following:

(i) that fear or force of sufficieni degree to vitiate consent existed at the time of
the marriage. Thus if the plaintitt \q$ not married the defendant he would have
ended dead, this-will-be iufficient.o'tF Thus in the old English case of Scor v.
Selbrigfu,43q where there was a threat to makc the plaintiff bankrupt, and to shoot
her, the marriage was annulled and in Szechter v. Szechter,oo0 the fear arose from
the brutal inhumanity of the Polish security police to a Jewish girl, already
invalicl, whom they sentenced to imprisonment that she feared she would not
survive. She wsnt through the ceremony to escape. The marriage was annulled.
However, where the rnarriage was deliberately entered to escape from a
disagreeable situation, such as penury or social degradation or to please one's
parents or to uphold religious tradition, this will nol"be sufficient to annul the
Larriage. Thusln rne Engistl case of" Singhv. Singh,aal the courl refused to grant
a nullity decree to the wife who went through an arranged marriage out of a
"proper respect for her parents and the tradition of her peopls." So also in Silver
v. Silver,aaz where the wife had rnarried a British husband in Germany with the
sole aim of obtaining a right to enter England, the court refused the decree as
there was no element of fear.

01"
Baxt€r v . Baxter, ap. cit. supra, see howe ver the conflicting cases in South Africa - Venter v .

Vel'ter 1949 (4) S.A. i23 (W), Van Niekerkv. Van Niekerk 1959 (4) S.A.658 (C.W.) and
Leighton v. rtoss N0 1955 (4) S.A. 134 (N) at p. 1 37.
t" 1r97r I P. zti6.
ttn See the USA case of lee v. Lee (1928) 3 S.W. ?;nd.672.
'3" 118861 12?.D.zt.
tutt
Op, cit. supra, see also H. v. H. [1954] P. 25S.
o''
1t9lt1 P. 226. See S. Poulter (1979) 42 Moderu Law Review 408 at pp. 410-418 and
Manchester, 29 Modern Law Review 622.
"2 ilo551 2 Ail E.R.614.
 114

(ii)e that the fear was reasonably entertained. The test is a subjective one- that
U. o-t thus: Did the ptainiiff succumb to the force or fear of force?
In
IrrV
';;;;";;
i. nrronfot ttrr Engish Court of Appeal held that the test is simply
whether the threat o, prrrrol is such as to destroy the reality
of the consent and
to overbear the will of the individual'"""

the plaintiff was

(iii) that the fear arose fiom external circumstances fol which
v. Paroicicaa6 threats
not responsible. In iuritg v. Szechteraas and Paroicic 'o
regime in Eastern Europe have been
life and liberty from policies of a totalitarian
held to be enough to annul the marriage in England'

an appearance
Generally, fraud will not vitiate the marriage -ull.tl?il..reates
P' said:
without ihe reality of consent. Thus, in Moss v. Mossuo' Sir Juene
.....in every case where fiaud has bcen held to be ths grounel ftlr declaring a marriage
substance of agrcement'
null, it has kre"n such l'rautl as has procured the form without the
has been annulled, not because of the presence of'fraud'
but
and in which the marriage -nf
.on."nt. But when there is consent no fraud inducing that
because of the absence
consenl is material."

..error about the family or fortune of individual though procured, ba

Thus
of the marriage''" '
disingenuous representation does not at all affect the validity
be
It is in the light of these dicta thatthe decision in Barotho v- Borothoaae can
for a nullity
said to have been given per incuriam. There the plaintiff applied
was obtained by
decree on the gr*und that his consent to marry the detbndant
married
tiaud. The plaintiff, a devgted member of the Head Mountain Church,
that he
the defendant when a third party told him that it has been prophesied
the plaintiff meJ tfe
should marfy the defendant. on being told of this prophesy,
told the
defendant and within four days they were married' The defendant
go for training but this
plaintiff that she was a nurse who was abaut to ovelseas
there was no
iurned out to be untrue. The defendant subsequently admitted that
prophesy of marriage. The court held that the plaintiff was entitled
to a nullity

oo3
11ls2i 4 F.L.R. 232.
be:ntrurt hcwevcr thc case of Singh v. Kaur (1931) l1 Fam' Law
uoo 1952'

'oo op. cit. supra

*ot' I Ati E.R. 1.
1195,11
ooi P. 263 at p. 269.
118971
'per
41t\
Lirril Stoweli in Wakefteld v. Mackay 1 Phillim' 134 n' 137 quoted by Juene P' in Moss v'
M os s supta al PP - 21 1 -2i73.

'o!' 1199518.L.R.359.
 115
r14 #

decree. The disparity of.fortune or mistake as to the qualities of the person will
in
not vitiate the marriige.asO It is submitted that if at all a mistake was made
: that
that case, it was on" oJ quality of the wife and should not have been a reason for
?IN the graLnting of the nullity decree.otl
:mply
rt and
7.4 RT]STRICTION ON THE GRANTING OF A NULLITY
DECREE BASED ON SUB-SECTION 22(3) (b) (c) and (d)
F was
ats to shall not
Section 22 {a) of the Matrimonial Causes Act provides that the court
been that:
glant a declaration of nrillity on the above grounds unless it is satisfied

(a) the plaintiff was at the time of the marriage ignorant of the facts alleged;
Iance
i|j tfr.^ptoceedings were instituted within a year from the date of the marriage;
and
rriage (c) marital intercourse with the consent of the plaintiff has not taken place since
:ment, the plaintiff discovered the existence of the grounds for a decree.
These are effective defences to an action based on the grounds specified
in those
d, but
g that subsections. A brief look will be taken at them'

'*'t Ignorant of the facts

:d bv f'\t
,.'*+"s This condition may create hardship to the plaintiff in that in a case, tor example,
an be of mental disorder within the meaning of the Mental Disorders Act, he must not
tullity only know of the existence of the disorder but he must know that it is "of such a
ed by kind or to such an extent as to maksj[hqllefeqdant u{ltted for marriage and the
anied procreation of children."asz ft;f may invot"e the plaintiff anticipating the
rat he gl*uity- of the disorder and its future development. This prognosis cannot be
Et the Ion. without the necsssary medical and psychiatric knowledge, which
I the knowledge will not be possessed by on o.rttigl plaintiff.as3 In relation to
I rhis prrgnun"]t per alios, knowledge of the wife's p-tt4?,n"y is not enough; there
no must be knowledge that she was pregnant by another'-"'
itv

4i0
See the South African of Stantler v' Stander 1929 A'D' 349'
case
case of
For a commenlary on the case, see E.K. Quansah "Marriage by divine revelalion: A
*5,
an uni'ullilleci prcphecy" lL996l4A Jottrnal African Law 103'
o't: 1 All E.R'
See.s. Zz fil itl (ii) of rhe Act and the English case of Bennett v. Bennett [1969]
539.
Knowledge of the mental disorcler has been abolished in England but such knowiedge
u53 ma1

lead to approbation - see section l3 (3) oi that country's Matrimonial Causes Act 1973'
*st See the English decision af Stocker v. Stocker lt966l2 All E'R' 147'
 116
#

7,4.2 Proceed.ings to be instituted within a year of the marriage

Under the English equivalent of this condition, it has been

judicially stated that
the requirement is very strict and must be Scrupulously observed'oss Thus in
Chaplin v. Chaplinas6 ihe wife fraudulently concealed from. the husband serving
a6road, the faciof the child's parentage. The court refused
jurisdiction to extend
the time limit.

7,4,3 Maritalintercourse
Where the plaintiff tliscovers the defendant's incapacity and voluntarily has
interccurse with the tlefendant that may amount to approbation, an implied
acknowledgement by the plainti.ff of the existence and validity of the marriaget
In that circumstance, it will seem against public po,l"tty that the plaintiff should
turn round and question the validity of the marriage'-'"

7.5 EFFECT OF A NULLITY DECREE

The effect of a decree of nullity at common law is retroactive to the time of the
marriage for both void ancl voidable marriages.a" The palties are restored to the
status quy ante and the chil<lren, fcrr instance, become illegitirnate with all the
that flow from that status. The legislature has therefore seen it fit
to expiess emphatically in s. ?2 (Qgi-$9-Y3!!1q-oggl-ea11.se14Q!- tna!, tyf eg a
"onr*qo.n"es
declaiaLr-q!l of'nullity is ganted i;iilpeit of a voidable marriagg, any
child who
would tra"e nein tfre fegitimate child of the parties to the marriage if at the date
of the declaration it friO been dissolved instead of being annulled shall be
OeemaA to be theif legitimate child unless such declaration is made on
the ground
that the defendanl was at the time of the marriage pregnant per alium' This
subsection makes it clear that a declaration of nullity of a voidable marriage,
as

far as any children of such a marriage are concerned, is not retroactive to the date
of the marriage but rather it takes effect from the day of the declaration'
Nevertheler*, do*, this imply that other aspect$ of the marriage, for example the
status of the parties, ure io be treated in like manners? One cannot give any

ttt pu, Karminski L.J. in Sullivan v. Sullivan [19701 2 All E.R. 168 at p. 172.
*t,' The time limit in England is now 3 years with no discretion to extend
1194g1 Z All E.R. 402.
it - See sectir:n 13 (2) of the Matrimonial Causes Act as substituted by seclion 2 (2)
Matrimonial and F'amily Proceedings Act 1984'
ott Se. the English case of 6, v. M. [i885] 10 App. Cas' 171'
*tn 5'
Sec the English Case of Cewb auld v. Attorney-C eneral ll93|l?' 7
 1l r

measure of a contjdent answer to the question. It is submitted that this creates an

uncertainty in the law that needs to be rectified by the legislaturea'5e or
meanwhile by judicial fiat.

The retroactive eff'ect of the declaration still applies ccmpletely to void marriages
and section 22 (7) makes the point thal nothing in section 22 shall be construed
as validating any marriage that is by law void but in respect to which they have
not granted a declaration of nullity.a60 The subsection re-echoes the tlictum af
l-ord Creene in the English cass of De Reneville v. De Renevillelbr to the effect
that one does not need a court decree to declare a void marriage to be without
legal effect, but as earlier stated, in practice such a decree is desirable.

*tu
See tbr cxample section l6 o1'the English Matrimonial Causes Acl 1973 re-enacting section
5 of the Nullity cf Marriage Act 19f i -
a"\]
ln ()sman v. Osnrnn supra, lhe court hcicl lhal sinc:c thc marriagc in that sase had all the
requircmcnls of a pulalive marriage where one of the pariies was ignorant of the impediment l.o
lhe marriagc, the child of the marriage should be declared legitirnate even though no prayer to
that efl'ect hacl been asked. The couri rclied on the South Aliican case of Prinskxt v" Prinsloo
1ess (3) S.A. 7-5e.
f/,1 .-
'''' up. ctt. \upra.
w
l5
118

CIIAPTER EIGHT

ANCILLARY RELIEFS

Ancillary reliefs are supplemental orders that a court hearing an action for one nf
the priniipal decrees, that is, divorce, judicial separation and nullity of marriage,
under the Act may granl to a party to the action. Sections 25,27 and 28 permit
the court to do these and they comprise the following:
(1) alimony fbr the wife
(2) financial provision for the wife, and
of the marriage'
{3) custody and maintenance of the children

8.I ALIMONY

Section 25 (1) provides that in an action for divorce or nullity of rnarriage the
court may make such interim orders for the payment of alimony to the wife as
the court thinks j-ust and equirable.l6r This relief is sometimes called alimony
pendente lite, tiit'is, alimony pending the delermination of the action. It is an
interim relief and it subsists untif u decision in the case is reached. The court is
given wide discretion whether it should grant it or not and as such a wife cannot
iemand it as of right. Thus, each case must be determined on its own merit'
particular regarcl will usually be had <lf the station in life and the financial
position of each party. The purpose of such an order is to enable the wife to live
approximately in thi same position to which she has been accustomed to until
the deterrnination of the action.

8.2 FINANCIAL PROVISION FORA WIFE

Secfion 25 (2) provides that on the grant of a decree of divorce or nullity of

marriage, the court may, if it thinks fit, order the husband to provide various
financial packages for the wife. These provisions are weighted in favour of the
wife. Except in the illusory circumstance where a wife brings an action for
divorce on tire "glound" of her husband's insanity, which ground, by virtue of s.
14 of the Act cloes not exist, the husband cannot benefit from the provisions'
They are in a contrarJistinction to the English equivalent that enables the husband

*0.
This section was relied upon in Louw v. Ogitvie op. cit at p. 360 as the basis for a
husband's <luty to support tr;s wife. The court in that case also held that although the divorce
action had nol yet commenced, in view of an agreement that the respondenl would institute
divorce p.o..*iingr, the applicant's applicaticn for maintenance could be heard in terms of
the Matrimonial Causes Act.
 119
d

and wife to come to the judgment seat upon a basis of complete equality'a63 An
insight into the possible rationale behind the provisions may be gleaned from'the
Attorney-General's contribution to the debate on the Bill in Parliament where he
said thit it was against Tswana custorn for a husband to be maintained by a
wife.a6a Section Zi fq introduces a distinction befween the right of a husband-to
maintenance and that of the wife, a distinction that previously did not exist under
the common law. The common law gave a reciprocal duty of suppoft to both
spouses during the subsistence of the marriage although more often than not it is
the hlsband whg was called upon to maintain his wife,due to his superior
economic resources. This has led to the following criticism of the provisions:

..That the 1973 Act should seek to change rhe position with regard to maintenance
fbllowing divorce is presumatrly wholly good. Surely, however, to introduce into a
system, *t-ti.tr knowJ no distinction during marriage betweel the spouses" respective
cluties to maintain, the notion that the prime responsibility for maintenancc lbllowing
,break66wn' falls upon the husband's alone is quite wrong. It is surely not intended, for
instance, that a woman legally obliged tt; support her,husband during their marriage
on'
should autornatically escape such liability on divorcc."

The subsection however ameliorates the position by specifying that the wife's
iortune, if any, must be taken into account in deciding whether she deserves an
order for maintenance or not.

Another com4qffia that can be made of the subsection is that unlike the power to
decide thdE'utual property rights under section 1"3, certain factors are specified,
which the court is to take into account in deciding whether io make the order.
Apart from the fortune of the wife, the court is to take into account, the ability of
the husband and the conduct of the parties. These factors will be explored
further below.

8.2.L Fortune of the wife

It is proper that a wife who is financially self sufficient should not be a burden on
a husband and so where she has adequate means of support this should be an
important t'actr:r to be taken into account in deciding wheiher or not to make an
order for maintenance. If the court is minded to grant an order, this factor will

Ses Cnlderbankv. Calderbankll9TS) 3 All E.R. 333 and Grffiths v, Grffiths [1973] 3 Ali
E,R. 1155.
464
See Hansard vol. 42 (1972) p. 92.
4n5
Himsworth, op. cit. p. t17. See also Sanders op. cit. pp. 173-i75.
 124

also influence the quantum of the award. The coniemporary reality is that most
women are becoming financially independent of their husbancls and it is only fair
that the law should take this into account in deciding awards in matrimonial
proceedings. ln Louw v. Ogilviea66 it was held that one of the factors to be taken
into account in deciding the level of support to be given to a wife was the
respective earning capacities of the spouses. It follows from this that where a
wife has the potential to support herself; it is not likely that much financial
support will be ordered for her. The court in that case also held that where the
spouses were sepafated, no fixed amount was allowed by way of maintenance.
Ao*euet, it was usually safe to allow the wife one-lhird of the joint income of
the spouses.a6T

8.2.2 Husband'sabilify
Presumably this factor means the husband's ability to pay. The court will likely
take into account the husband's responsibilities to the extended family or other
dependants such as a former wife and children in assessing his ability to
discharge any obligation that may be thrust upon him in relation to his wife.

8.2.3 Conduet of the Parties

This lactor may pose problems for the court. For to what extent should conduct
be relevant to financial provision bearing in mind the shift of emphasis in
divorce proceedings from guilt to irretrievable breakdown? The English Court
of Appeal gave a guide to a possitrle approach in Wachtel v. Wachtef"" in which
ihe court tried to prevent the underlying policy of the Act from being subverted
by undue reliance on conduct in awarding financial provision to a spouse. lt was
the view of brd Denning M.R. that the fact that the court is to have regard to the
parties' conduct does not mean that the coull is to hear the parties "mutual
recrimination and...gr: into their petty squabbles for days on end" as was the case
ooa
before the passing of the Aci. There is no need for post-mortem to find out
what killed" the marriage. It was his Lordship's view that in most cases

"both palties are to blame - or,wc would prefer to say - both parties have contrihuted
as
to the breakdr:wn. They have suggested that there should be a 'discount' or 'reduction' in

'('(' {.}p. cit.

o"'
Ihid. at p. 364 relying on South Afiican case of Frjclr al v. Frichol 1945 T.P.D. 276 and
English case of Crffith v. Crffith [19571 1 W"L.R. 478.
tnn
1t9l:1 1 All E"R. S29 (C.A.) See M. L. Parry "Having Regard lo Lheir conduct: Financial
Provision and Divorce" 1,975 New Law,Iournal pp. 960-962.
 12t

what thc wil'c is to reccive because misconducl, guilt or blame

oI hcr supposed
(whatever word is used). Wc sannot accept this argument. In the vast majority of cases
it is rcpugnanr to rhe principlcs undcrlying the ncw legislation, and in particular the Act
ol 196^9. There will be many cases in which a wife (rhough tlnce considered guilty cf
blamew6rthy) will have carcd for the home anci looksd aftcr thc tamily for very many
years. Is she'to be deprived of the henetit otherwise to be accorded to her.'. hecause she
may sharc responsibility for thc breakdown with her husband? There will no doubt be a
,*ri,lu* ot cases where the conduci of one of the parties is in thc judge's words""'both
ohvious and gross', so much s0 that to order one pafly to support another whose conduct
falls into thislategory is rcpugnant t0 anyone's sense of juslice. In such a case, the court
remains frec lo 6ecline tg-aflirrd financial support or to reduce the support, which
it
would otherwise have ordered. But, short of cases falling into this catcgory! thc court
should not reducs its order for financial provision merely because cf what was formerly
regardetl as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in
469
lhe course of an unhappv married lit'e."

The above rlic:tum is an elaboration of that of Ormrod J. at first instance, where

the learnedjudge said: -

,,The courl can only approach lhis issue in a broad way. It should bear in mind the new
basis of divorce which recognises that, generally speaking, the causes of breakdown arc
ccmplex ancl rarely lo be iound wholly or mainly on one side, and that the forensic
pro"*r, is not well-adapted to tine a$sessmenls or evaluations of behaviour, and that it is
n<;t ,:nly concluct in relation lo ihe breakdown which may all'ect the discretion of
the

court in many way$, e.g. the appearance of signs of financial recklessness in thc husband
or of some fbrm of socially unacceptahle behaviour by the wife which wculd suggesl to
a reasonable person that in iustice some modification to the order ought to be made. ln
my experience, however, crlnrluct in thcse cases usually pr0ves lo hc a marginid issuc
" "'
which exerts li1}e el'lect on the ultimate result unless it is both obvious and grtrss."

It is clear from these dic:ta that in exercising its discretion to award maintenance'
conduct should generally not be given any appreciable weight unless it is "both
obvious and grcss." In other words, it must be conducl of exceptitlnal gravity,
"of a kind that would cause the ordinary mcrtal to throw up 1ris hands and say,
'surely that woman is not going to be given any money Thus where tbr

to'
Ihir!. at pp. 83-5-836.
"" 119711 l Ali r.R. 113 at p. 119.
|1t'perSir George Baker P. in trir. v. M (Financial Provision: Lump sum) [19761 Fam. 107 at p.
I 10. Sce also Rabi'nson v. Rt;binson l19S3l 1 A1l E.R. 391 at p. 395 ant) Arrnstrortg
v.

Armstrong, (1974) 118 S.J. 579 (CA). per Sicphcnson L.J. cited in Kokosinski v. Kokosinski

[1eS0] 1AllE"R. 1106alP. 1116.

 122
w

example, a wife has an adulterous relationship with her husband's latheraT2 this
will fall within the exceptional conduct referred to above.

8.2.4 Form of award

Ttris may be either a gloss sum of money; an annual sum of money for life of the
wife bofh of which may be secured or periodic payments for the wife limited to
the joint lives of the spouses. The secured payments will usually require the
husband to set aside some capital that will normally be vested in trustees that can
be resorted to if the maintenance payment is not kept up. In practice it is likely
that the pericldic payment, which may be besides or instead of gross or annual
payment, will be in favour with the courts due lo the non-availability of
sufficient asset{i usually to make it worthwhile to make the former orders'o'''

8.3 FINANCIAL PROYISION I FOR CHILDREN OF THE

MARRIAGE

.section 28 empowers the court in any proceedings for divorce or nullity of

marriage or judicial separation to arrange for the maintenance of the-children, the
marriage of whose parents is the subject of the proceedings. Here, as with
mai$qgance of a wife, the court is given wide discretion. The order for such
maintenanie can be made from time to time, before or at, or after the granting of
any of the decrees in the above proceedings. [n empowering the court to make
fjnancial provision for the children, p,-{8, unlike s. 25 does not draw a distinction
between a husband's duty to maintain-his cfiildren and a wife's duty to do the
same. The assumption underlying s. 28 may be that both parents are relponsible
fcrr maintaining their children. This accord with the common law position as
statecl by Trollope J. in the South African case af, Herfst v. Herfst."'* He said:

,,t v. Totliclay (1982) 4 F.L.R.542. See also Dixon v. Dixan (1974) 6 Fam. law 58
Bailey
(Husband's aduhery with daughter-in-law). Ilut whilst the courts can assess whal is "obvious
and gross conduct" their view of what extent such conduc{ should affect an order has not been
consistent, for example, in Cuzner v. {Jnderdawn 119741 2 Ail E.R. 351' a wife who had
acccpted a half share of lhc matrimonial home whilst carrying on an adulterous affair was
ordeiecltofbrfeithersharetothshusband;inArmstrongv.ArmstrongQ9T$ lllJS.J- 579,cited
by Wood I. in Kokosinski v. Kttkosinsk J19801 1 All 1106 at p. 1116'
,f, M"inlrnunce awards 1or wives in divorce proceedings are rarely given by the courts. See lhe
UNICEF/Government of Botswana repott Children, Women ancl Devektpment: A Situation
Analysis al p. 21 I and Molokomme, A "The mosaic of Botswana maintenance law "{1987)
19

Botswana Notes and Records 129'

'14 tg64 (4) s.A. 137 (w) ai p. l3o.
 123
#
"The general principlas are that a child of divorced parents is entitled to be maintained
by them, and they are correspondingly obliged to proviclc it with everything rhat it
reasonably requires for its proper living and upbringing according to-theii means,
standard of living and sta|ion in lil'e. This obligation attaches to both parents jointly, but
inter'se, their respective shares of that obligation are apportioned according !o the
financial resources and the circumstanccs of cach of them.,,

The above dictum was approved by lrsetedi Ag. J. in segr:sehev. segosebe.a7s

There the court in making an trrder for the maintenance of a minor child, orderecl
the father, a university lecturer, to pay P100 per month until the child reaches the
age of 71, pay the educational expenses at an English medium school, while the
mother, a secrelary, was to pay all other expenses.

The general approach to be adopted in divorce proceedings in determining what

maintenance should be ordered to be paid for the maintenance of minor children
was stated by Chatikobc J. in Shaudiv, ShaudiaT6as follows:

(1) Ascertain and add together the total net income of the father's household and
the mcther's household; this total gives the total available money available per
month.
(2) Calculate what claims there are on that income by allocating two shares to
each adult in the two households and one share to each child in the two
households.
(3) Divide the total amount of money available each month by the total number
of shares: one share will be a child's share and two shares an adult share.
(4) calculate how much money {if any) should be paid by the father ro the
mother as maintenance in order to ensure that the child who is the subject of the
dispute receives a child's share.
(5) Adjust the figure arrived at in step 4 up or down to allow for the innumerable
variable tactors and special features which may arise in the case under
consideration.

The court stressed that this approach must be applied with flexibility, taking into
account the facts of the particular case before the court.

The Act does not define what is meant by "children, the marriage of whose
parents is the subject of the proceedings." There may be difficulty in some cases
in identifying a child for the pulposes of section 28. For example, cl6es a child of

ll: f]e9,5f B.L.R. s27 at p. 529. See also Mazite v. Mazite [?0011 I B.L.R. 175.
""' [20r)31 2 ts.L.R. 163 ar p. 166.
 124
#

either spouse by a previous marriage or relationship come within the purview of

the section? Ii is submitted that such a chiltl should be taken to be one the
marriage of whose parents is a subject of a proceeding under the AcL if such a
child has treen treatecl as a child of the marriage at all material times' To
determine this, one may recommend the simple formula put forward by the
English I;w Cgmmission+t7 that is to ask whether the child in question has been
enJouraged to refer to the parties to the marriage as mother and father or,
for
instance, as aunt and uncle. In the former case, the child may be said to have

been treated as part of the family while in the latter case, he will not be
so

treated. Any sebured provision made for the Lrenetit of any child should not
cxtcnd bcyond his 2l'' birthday.*'o

it s.+ PROPERTY RICHTS ON DIYORCE4Tg

The court has limited powers conferreel upon it by section 13 of the Matrimtlnial
Causes Act tg determine the mutual property rights of the parties to a
divorce or
judicial separation proceedings. No guidelines are provided by the .Ott l?l
ietermining these iights and in the leading case of !!-o"l!:^o-v; .{olom"'"""
Hannah, J. was of the view: -

..,..that the powers of tlre court under s. 13 are substantially the same as in any other
proceedings where the ownership or posscssion of property is in issue ' The discretion
is
48l
of the court in such cases."
no wirler aniJ no narrower than the ordinary discretion

The learned judge came to this conclusion after rejecting a submission that the
section confers a wide power to adjust property rights by principles of equity and
fairness and that it sfroutd be applied similarly to that stipulated by section 25 of
the English Matrimolial Causei Act 1973.48r In deciding what has been called

*?i
Rrport No. 25 1969 Financial Provision ift Ma*imonial Proceedings para. 31 n. 65' There
*uy t . some difficulty however in applying this tbrmula in the Botswana context. This is
English conccpts of father, mother, uncle and aunl may not necessarily coincide
with
bccausc
Setswana concepts.
,tn Se* f'or example. Mtrthibav. Mathiba MC F100n995 (2? Ni:vember 199(i) unreported and
Senabye v. Senobye 120041 1 II.L.R' 110'
in g*r E.K. euaniah "lietermining propeny rights between spouses on divorce: A tale oi
two jurisdictions (Ghana and Bctswana)"(1993) 5 African Journal af Comparative snd
Interngtir;nu[ Luw 389.
o*"
1t9:9-Bo1 u.L.R. 250.
,0,
iJriC. ai p. 2;1. approved in Maisakamo v. Moisakama(2) l98L (1) B.L.R'126 at
p. 147'
,t2 to regartl, inter alia, to ths income and linancial rosources
That secti,ln enj,rins the court have
al the parties; their financial needs; their slandard of living; their age and duration of thc
marriagc and lheir conducl'
 125

'1he cold legal questlonr/83 of who owns what on divorce the court is likely to
find an answer to the question oowhose is this" rather than "to whom shall thii be
given,"484 this will be rnore so if the marriage is out of community of property.
In a marriage in community of property no problem arises as the prr:perty, by
law, is equally divided on the termination of the marriage.

Before a look is taken at how the courts have exercised this power? it must be
mentioned that the parties may render the exercise of the power unnecessary by
settling their rights by agreement. which on application to the court, mav rle
incorporated into the decree granted as an order of the court.48s In South Africa,
it has been held that such an agreement is subject to modification by the parties
even if embodied in a court ordera86 and that without fraud, error or duress the
court cannot vary the terms of such an agleement without the consent of the
parties.asT

8.5 BXERCISE OF THE POWER CONFERRJJD BY SECTION 13

MATRIMONIAL CAUSES ACT

The availability of assets may condition the exercise of the power, whether the
parties are married out of community of property, and whether they are persons
subject to customary law. The latter factor may prove elusive to resolve
sometimes. The courts so far have not had to decide the question who is subject
to customary law as it has not been in issue in the cases that have come before
them. However, ascertaining who is subject to customary law will be instructive
as the determination of the question may point the way to how the power is to
be
exercised.

8.5.f Who is subject to customary law?

There is n<l statutory definition of such a person but he can be ascertained from
the lbllowing statutory provisions. Section 2 of the Customary Courts Actass
defines customary law as one: -

t-ord Denning in Grssing v. Ci.rstrg 85 ar p. 93.

ll] "r' [.ord Morris inPettittv.pettitt [1970][1969]2Ch.
'"* I'er A.C.717 atp.79g.
*'Soe scctitu 18 of the
Act, Mt;lomov. Molomo op. cit. and Maisakctmov. Moisakarno {2)
r98l (1) B.L.R. 126.
u86
see Horne v. Horn,e.1928 w.L.D. 350 and Ex parte willis 1947 (4) s.A. 74(t (c).
481
Beattie v. Benttie 196s (2) P.H.B.8 (C). See aiso Morake v. Morake MC No, FB0/1986, (12
June 1996), unreported.
{s8
Cap 4:05.
& t26

"ln relation to any particular tribe or tribal community, the customary law of that tribe or
tribal comrnunity..."

This definition points to the fact that customary law is applicable to members of
a tribe or tribal community. To be subject to customary law therefore, one has to
belong to a tribe or tribal community. Such person is said to be a tribesman, a
term defined by the same s. 2 as one who is:

"...a mernber of a tribe or tribal community of Botswarra or of any other Africarl country
prescritred by the Minister by order published in the Gazette for the purposes of the
Act,"

No African country has yet been prescribed for the purposes of the Act.
Consequently, the term "person subject to customary law" is presently lim.i^tgd to
persons who are members of a tribe or tribal community within Botswana.un'

8.5.2 Marriage in community of property

The Married Persons Property Act in 1970 has reduced the all pervasive
intluence of the marriage in community of property regime. Section 3 (1) of this
Act reversed the presumption previously existing in fav.our of community of
property to one in favour of marriage without community.""" Where community
of property applies, it eniails the pooling of all the assets and liabilities of the
parties immediately on marriage. The resultant joint estate is held by the parties
in co-ownership, in equal undivided shares, though the wife cann<;t exercise any
rights over her share until death or divorce dissolves the commullity.'*'' On the
occurrence of such an event the court has no choice but to distribute the assets
equally,^sulject to a possible order of forfeiture of benefits against a guilty
spouse.'o' f rnus in MoTomo v. Molomo,the court said:ae3
i
48"
It is doubtful that a naturalised Motswana will come within the term since the conditions lbr
such naturalisation does nclt include an altachment or acceptance by a tribe or tribal community.
See secti{rn 13 Citizenship Act 1998.
4'J{)
The parties may however express a wish prior io the marriage for the eoncept to appiy ti:
their marriage.
't" S*" Hahki, op. cit.Sth ecl. 1985" pp.153-285, and Edelstein v. EdelsteinlgSZ(3) S.A.1. The
concept has come under increased criticism, see A. Molokomme "Marriage; What every woman
wants or a declaration of 'civil death'? Some legal aspects of the status of married women in
Botswana" (1984) Pula - BotswanaJournal of African Studies 70 and Chiklrcn, Women end
I)evelopment in Botswana: A Situation Analysis Government of BotswanalUNICEF Repcrt op.
cit. pp.2A6-214.
t"tlt is d"t atable whether this order has survived the 1973 Act. See Himsworth, op. cit. p. 176,
 tz7
ii

"ln this case the marriage was in 1960 and tlrerefore in accordance with the common law
of Botswana was in community of property. The partics did nol avail themselves of the
provisions of the Married Women's Property Act and theretbre it continucd in
communify of property and profit and loss. In detennining the parties' mutual property
rights I must therelbre pnrceed on the basis that the rights in issue were in joint
ownership and I must endeavr:ur to elTect a division in equal shares."

The court may appoint a liquidator to divide the assets and if it does that the
parties cease [o have locus standi to litigate about the liquidation or division of
the joint estate4'x but where the court can easily divide the assets a liquidator will
not be necessary.ons
-

A spouse can only be deprived of a share of the joint estate if the court makes an
ordir to that effect. Schreiner J. in the South African case of Smith v. Smithae,
succinctly put the effect of such an order as follows:

"What the defendant forfeits is not his share of the conrmon properq/ but only the
pecuniary benefits that he would otherwise have derived from the marriage...It (the order
lor tirrf'eiture) is really an order fi:r division plus an order that the defendant is not to
share in any excess that the plaintiff may have coniributed over the conlributions ol the
defbndant."

The order is thus punitive in nature and despite authority that it still exists under
a no-fault divorce proceedings*et, it is submitted that its continuous existence
will be an antithesis to the concept of divorce envisaged in the 1973 Act.
Consequently, it is submitted that it must be taken to have been impliedly
repealed by the Act.aes

and ,Sarrders, ctp. cit. p" 173. Cf lhe decisisn of the Court ol Appeal in Molefe v. MoleJb l2OO4l2
B.L.R. B0 (CA).
t"'
J19r9-Bo1 B.L.R. z5o at p.2s7.
t"4
Ceetzer v. Co<:tzer 1955 (l) PH Il1 (0).
*"t
See Mok;mo v. Molamrs ap. cit. p.257.
*t'u
w.L.D. 126 atpp. 121-8.
1937
'"- Se. Mult'.[t'v. Molcfe op. c'it. supru.
'"n See E.K. Quansah "The order for: feaiure of benefits in divorce proceedings in Botswana: A
relic of a bygone era or a glrost from the past?" I University of Botswana law Journal (?005)
lzt]'.
 128

8.5.3 Mariage out of community of prope*y

This tlpe of marriage does not affect the proprietary rights of the spouses. Each
spouse holds whatever property he or she had before the marriage and during its
continuance any property acquired is subject to the same regime unless there is a
clear indication that it was meant for the joint ownership of the spouses. The
general rule therefore is that on divorce each spouse takes his or her'separate
property. If there is evidence of joint ownership or one of the pa$y's claims to
be entitled to a share of the other's property by virtue of a ci:ntribution, whether
in cash or kind, then it is the duty of the court to determine the proper share that
each has in the said property. In determining the issue the intention of the
spouses is crucial. Since usually there will be no expressed intention as spouses
rarely think about 'his' or 'hers' during the subsistence of the marriage, the courl
will try to ascertain what was in the minds of the spouses at the tirne of the
acquisition to come to a conclusion that will reflect that intention. Where the
courl can clearly see that the parties intended that a particular property should
belong to one or r:ther of the parties whatever happened there is no discretion in
the court to override that intention. Nevertheless, where the court is satisfied that
the intention was to share, or is not pcssible or right to assume more precise
calculation of their shares, equality almost necessarily follows.
on')inwhich
The above principles were applie d in Rabnntheng v. Rabantheng the
dispute involved the matrimonial home, the title deeds of which were in the
name of the husband. The wife had contended that the house was intended to be
their joint property and that it was put in the name of the husband because he
was the head of the family. The husband denied this. The wife alternatively
submitted that she had made substantial direct contribution towards the purchase
and maintenance of the house. She contended that she had paid P675 towards
the mortgage repayments and contributed P16U1 01 towards the payment of
rates. She further alleged that she had made indirect financial contribution by
providing food etcetera for the husband and the family. On these facts,
Hallchurch J. awarded one-third share in the house to the wife solely by her
direct contribution"of P675 towards the P2813.78 purchase price. However, the
learned judge's rejection of English law principles in cases such as the instant
one was unfortunate. English law principles are germane to cases like this as
English law has no particular rules applicable to disputes involving property of
spouses or fcrmer spouses-. The courts there apply general principles applicable
to dispute over property.tuu Furthermore, the total disregard of the wife's indirsct

*' 1tl8s1 B"L.R. 260.

s""
See Cretney, op. cit. p. 629; Cissing v. Aissittg [19711 A.C. 886 at p. 889 anrl Pettit v. Pettit
 ------

129
i:l

contribution will often cause considerable hardship to most women who do not
eam an independent income outside the home but contribute significantly to the
welfare cf the family thereby giving their husbands the freedom to be gainfully
employed.'o'11

The power given by section 13 of the Act does not give much room to the court
to do substantial justice between spouses married out of community of property.
There is a need to broaden the power by giving the courts discretion to divide
matrimonial assets in a manner commensurate to the needs of the spouses at the
end of the marriage.

An attempt to ameliorate the lack of discretion to do substantial justice to

spouses in cases such as that discussed above was made by the Court of Appeal
in Mbenge v. Mbenge.50\he appellant sought an order for equal division of all
the property acquired by the parties while living together as husband and wife.
The appellant based her claim on an assertion that she was married to the
defendant in community of prcperty and was entitled ta S0olo of the property he
had acquired during the marriage. However, the evidence disclosed that no
magiage had ever taken place between the couple and that "the plaintiff has
ignorantly elevated her adulterous cohabitation with the defendant to the status
of a lawful marriage in community cf property."tot Her clainr was <jismissed by
the High Court but th_e. Court of Appcal held that the evidence gave rise tc a tacit
universal partnership''"u and that the appellant was entitled to 507a of the joint
assets of the parties. The preparedness of the Appellate court to use the universal
partnership concepl to do substantial justice to cohabitants augurs well fnr
spouses married out of community of property. This is trecause such spouses set
out on their marriage to pool their resources together for the common good and
when the marriage comes to an end, there should be a legal mechanism to
distribute the assets acquired by their ioint efforts in accordance with their
respective contritrutions. The universal partnership, as dernonstrated in
Mbengeis case , is one means of doing this.

[1970] A.C. 777 at p. 813.

t"'Se* thc English Lai.l' Commission's report - Filwncial Provision in Matrimanittl Proceedings
(Lrw Com. No. 25) 1969 para. 69.
n'j
1tuuo1 ll.t..R. t-r (('A).
''t' lct 7.b,tagyc J. in the courl o quo quoled by Wylie J.A. at p. 143 ol lhe flourl ol' Appeal
rsport.
504
Thc courl lelied on tbe Srluth Aiiican case of Iscrzcs v. Isaac.r 1949 (1) S.A. 952 at pp.961-
962' On the essentials of this type ol parlnership, scc the Sculh Aliican cascs ol .loLtbert v.
Iarrv& Co. 19157.P.D.711 atp.279ant1 RhodesiaRailways&Ars.v.Commissianerof Taxr:s
lq:5 A.D. 438 at p. ,1{r.5.
 130

8.6 CUSTODY OF CHILDREN OF THE MARRIAGE

By section 28 (1) of the Matrimonial Causes Act, in any proceedings for divorce,
nullity of marriage or judicial separation, the court may from time to tirne, either
before or at or after the decree or declaration, make such provision as it appears
just with respect to the custody, mainlenance and education of the children, the
marriage of whose parents is the subject of the proceedings. This power enables
the court, always, to make orders in respect of the custody, maintenance and
education of the children of the marriage as may appear to the court conducive to
their welfare.50s The principle that the court is funtus officio (having performed
the duty of office) upon pronouncement of a judgement or order has been held
not to apply to matters relating to custody, maintenance and education of
children in the light of the provisions of section 28 of the Matrimonial Causes
Act 1973.5i]6 The purpose of section 28 is to ensure that the court as upper
guardian of all children is not constrained in its duty t<l uphold the best interests
of children at all times. Thus all issues relating to the best interests of children
can be revisited from time to time as circumstances dictate.

The power can only be exercised in the course of proceedings for divorce, nullity
or judicial separation. Thus, in Setlo v. Sello & Anor."" , Aboagye J held that in
the absence of any of these proceedings, the court has no jurisdiction to entertain
an applicalion, inter alia, for custody of minor children pendent lite. In the
inslant case, there was no proceeding between the parties for divorce, nullity or
judicial separation pending in the court at the time the plaintiff filed her
application for interim custody of the children of the marriage. Her application
was thsrefore <Jismissed. However, in Mazile v. Mazile5}' Dow J. was not
deterred by the"fact that none of the proceedings specified in section 28 has been
instituted. She went ahead and heard an interim application for custody of minor
children of a marriage, which seemed to have broken down irretrievably but the
parties have not taken steps to end it. The issue of the court's iurisdiction to hear
the application in the absence of such proceedings was neither raised by the
respondent nor did the court raise it suo mota. Thus, this decision may have
created some uncertainty in the law as to whether the court can adjudicate in
custody matters without compliance with the provisions of section 28. It is

5"' Sec Pctcr y. Pt'rcrl 1975

| I IJ.L.R. lt{.
^"" Per Marumo I.inSenabyev.senubye [2004] 1B.L.R. 110"
'"t 1r99ii1 ts.L.R.502.
''"* I B.L.R. r7.5.
12ot)i I
 131

submitted that Sello's case represent the proper interpretation of section 28 and
must accordingly be adhered to.

Custody in its widest sense, includes all parental rights such as the right to
physical possession, control of the child's education, determination of his
religion, consent to medical treatment, right to discipline the child and to
administer his property. Nevertheless, sometimes it is used in a restricted sense
to refer to control over long-term decisions such as the manner of education as
opposed to care and control. Thus custody can mean actual custody (physical
possession of the child) or legal custody (rights over the child affecting his
person). In divorce proceedings the usual order is to grant actual control to one
parent while the other parent is given the right of access or legal custody. The
children who could be the subject of a custody order are those under the age of
21 years.

8.6.f Principles governing the award of custody

Section 28 of the Matrimonial Causes Act gives the court an unfettered

discretion in the award of custody. The common law originally recognised the
principle that a father's right to the custody of his children was superior to that of
the mother.tou How"oer, the court being the upper guardian of all minor children
could interfere with the father's right on special grounds. such as, for example.
the danger to the child's health or morals.sr0 Judicial dicta on the other hand
emphasised the best interest of the child as the paramount criterion for the
determination of custody issues.511 There was thus uncertainty about what was
the real determinant when the court was considering custody issues.

A statutory provision has now resolved the uncertainty in favour of the welfare
of the child. This was done by s. 6 of the Customary Law Act 1969, which
provided that:

"Notwithstanding any'thing to the contrary in this Act" any case relating to the custocly of
children the weltare of the children shall bc tho paramount consideration irrespective of
which law or principle is applied."

t"u
See the Soulh Aliican case of Calitz v. Celitz 1939 A.D.56 at p.61. Sec also M. Sornarajah
"Paretrlal custody: The recent trends" (1973) 9 South African Law.lounul 13 from which some
ol the views expressed in lhe text were drawn.
i"' SeeBr.,gopav. Bogctpa MC. No. F121l1996 (27 Nervember 1997) unreportecl.
5" See the South Aliican cases of Cronje v. Cronje 1907 T.S.871
and Tahh v. Tuhh 1909 T.S.
1t)33.
 134

parents. were unfit ttl have

a have been shown to the effect that the biological
custody of their child. However, the welfare
of the children may dictate
was of the view that the
otherwise. Thus, tn iangaka v. Rangakatz! th" court
be given to their faifer
welfare of the minor chiliren dictated that their custody
moral or punitive
who wa$ a resident of south Africa. Furthermore,
depart from-this.principle' Thus in the
considerations may influence the court to
gng iuit case of ,ReI (lnfants)sz3 Harman L'J' was of the view that:
chooses to plt
i.lf the wife chooses to leave her husband for no ground which she
for another man, as this wr:man has' she
fbrward, but because she has a tancy or passion
must be prepared to take the consequences'"

before the inception of the

Itmust be remarked that this case was decided
..irretrievable breakdown" of a marriage and perhaps in the present
concept of
circumstances where the apportionment
of btu*" for the breakdown of
changed
marriageisnotrequired,thecourtsmaynottakesuchaseveremoralstand.
remarks of Dow J' in Muzile v'
Finally on this f'actor, note mrist be taken of the
Maziie,where she said:524
.,It has been argued on behalf of the applicant that mothers are best piaced t0 taks care of
has changed since the blind view that all
very young children...It is my view tlrat a tot of the
morhcrs are bcler ro young chiltlren. The quesrion is not the sex
;;;;&;r; 6f a child is
quJity parenthood indicated' Custody
parent, hur rarher i* *itiEi"n"y unO
borh a responsibility ;;J^; *rtt ur a priviiege. It is not a gender right'"

and that of a daughter

s.6.3 Custody of a son should be given to the father
to the mother

Theassumptionunderlyingthisprinciple':'l*aparentofthesamesexasthe
dwards
Rangongo v' Rangongoszs
child could provide better guidance. Thus, in
oT tn. female children to their mother
and the male
J. awarded g,.
"*iJy
children to their iutft"t. This principle is said not
to be a prirrciple in the true

ttt supra. 1948 (i) s'A'

,..
1tsoz1 3 All E.R.
I at p. 4. Cf. the south Alrican case of Fletcher v' Flercher pafent was
emphasised that awarding custody to one
130 (A) where the then Appellat" ni rition
to serve the best intsrest ol the child-
not done to punish rhe othlr parent but
5:t
At p. 1"76.
the English cases of Re K' (Minors)
.525
MC 67ltg.7B(g June 1979), unreported. See also
l|nlran' 179 at p' 191 and Re c' (A') Infant) [19701
(An 1 A1l
{chitdren: care and 'o'i'it1
E.R. 3()9 at P. 3l l.
 13-5

{EgF sense of the word but rather judicial statements gl-general experience which
application depends on the facts of a particular case.)jo

8.6.4 Custody should not be given to an immoral parent

Where a parent is immoral or unfit for the moral guidance of a child, custody
will not tre given to him or her.s27 Nevertheless, thi degree af immorality must
be above the ordinary transgressions of an average individual. This view, it was
said, enabled putrlic morality to be maintained but modern attitudes have veered
away from this in the light of the changed emphasis in divorce proceedings. Past
adultery by the mother, for instance, has not prevented her from being awarded
custody. Thus in Ramotshubi v- Ramotsltubiszs Hannah J said that though the
break down of the marriage was due to the wife's aduitery, this should not be
exaggerated in determining who should get custody of the children of the
marriage.."^Similarly, in the English case of Re K. (Minors) (Children: care and
t:ttstody|'", the wife of a clergyman who formed an adulterous relationship with
a church member was not prevented from getting custody of her children.

8.6.5 Wishes of the child may be taken into account

In Ramotshabi v. Ramotshuhiss0 Hannah J said:

"If the mother were awarded custody, it could only be on the basis that she returns to the
lormer matrimonial home and that the father leaves. She has no where else to
accommodate the children. Unfortunately, three of the children have told the Welfare
Olficer that il that shoul<l happen they would wish to leave with their lathcr. Of course
the court cannol be dictated to, but when dealing with children of seventeen and fiiieen,
it would he wrong to completely ignt-rre their cxpressed wishes."

This dictum points to the fact that where the court considers the child to be
mature enough to know what he wants his view will be taken into acccunt.
However, where he is immature, not much weight will be attached to his wishes.
Thus in the South Aliican case of Greenshields v. Wyllie53t Flemming J. refusecl
to give much weight to the wishes of children aged 12 and 14 trecause children
come into storms and into upheavals and as they grow up their perspectives and

t?u
See the English case oI Re K. (Minors) (Chtldren: cnre ancl con*ol) supro.
ott
S"" the South Afiican case af Fletcher v. Fletcher supra
5?*
MC l5}l1g82(21 ocrober 1983). unreported.
i}r ^
Jupra.
trtt -
,tupra.
i3' Ig89 (4) s.A. 898 (w) at p. 899.
 136

13 needs change. Even where the courl decides to consider the child's wishes, this
will not be decisive as such a view may tu_rn out not to be independently
ooassiduously
expressed but rather one instil1.6'::-rr'r into him by one parent.

8.6.6 A child's existing associations and environment should not be

lightly disturbed

Where the child has found stability in the home of one parent, the court will be
reluctant to disturb that situation unless sufficient reasons exist to show that the
other parent's custody is preferable in the interest of the child.sl3 The
psychological harm that this change may cause to the child is well recognised by
the courts.53a Where the child has grown up with his brothers and sisters, tle
court will be even more reluctant to disturb their association.s3s

8.6.7 Material advantage of one parent should not be a consideration

The welfare of the child is not measured in material advantage alone. "Affluence
and happiness are not necessarily synonymous".s36 Thus as a general rule,
material advantage should not be decisive in favour of the parent who can
provide for the child. Nevertheless, where, for example, one parent does not
have a home, or is not able to provide one, or is unable to provide continuity of
care for the child, custody will be denied him. In Rangaka v. Rangaka-s37 the fact
that the father of the minor children could provide superior accommodation for
the children in South Africa greatly influenced the court in granting custody to
the father.

532
Per Cross J. in the English case of Re S" (Infant$ {196711W.L.R. 396 at p. 408.
s33
See Mazile v. Mazile op. cit. Mosase v. Mosase [1984] B.L.R. 253 and the English case of
Re S. (Infants) supra.
t3t
S.e the English case of/. v. C. arp.726.
sri See lhe Engiish case of Adams v.li926lCh.676
Adams (19S4) 5 F.L.R. 768.
"o -I'er Griffiths L.J. in the English cases ol Re It. (Adoptiott: Parental Agreement) [1985] F.L.R.
63-5 at p. 631 and Richards v. Richartls [1984] 1 A.C. 175 at p. 205.
5'tt
Unreporte d supra. See also the South African case of Katzenellenbogen v. Katzenellenbogen
1e47 (2) S.A.528 (W).
 131
\

CHAPTER NINE

paren,a, power _.T,-::::::::::: and,luries of

"ff*hrs
parents in respect of their minor children.538 When a child is born legitimate, the
father acquires the parental power and natural guardianship over the child.s3e
Where the child is bom illegitimate, the parental power vests in the mother.sa0
This power may be transferred to the father if the father subsequently marries the
mother of such a child. No parental power may be acquired over a step-child
unless the step-parent adopts the step child. When such a child (or any other
child for that matter) is adopted, _!he parental power of the natural parents is
transferred to the adoptive parents.sal

The parental power terminates when both parents die,5a2 or the child attains the
age of majglity (2i years) or maries or the parent is deprived of the power by a
court ordcr'"'' or thc child is adopted.

In this chapter, the following aspects of the parental power will be discussed,
namely, (1) Adoption and (2) Maintenance of illegitimate children and (3)
Custody of illegitimate children.

t3n
See D.S.P. Cronje& J" Heaton South African Familylaw, Durban, Bufterworth, 1999 at p.
197. The parenlal power is nowadays being subsumeel under "Children's rights". See tbr
example, the UN Convention on the Rights ol a child ol which Botswana is a signatory but is
yct to ratify it.
'3' sec the south African cases of van Rooyen v, werner ( I sg2) 9 s.c. 425 at p. 428 and F. r.
t. 1987 (4) S,A, s2s (w) atp. sz7.
5a{)
For the legal rJisabilities attached to iliegitimacy, see A. Molokomme "Legitimate and
Illegitimate children" (19{i4) 22 Kutlwqno pp. 14-15 and B. otlhogile "succession and
Illegitimate" (1985) 23 Kutlwttno at pp. 30-31.
'ttt See section 6(3) of the Atiription ol Chilclren Act 1952.
542
Aithough on the death of one parent the olher assumes the parental powcr.
iar The
iligh Court being the upper guardian of all minors ha^r a right to deprive a parenr of his
or her ;xrwer <tver such a child if it is of the view thal such a move bc will be in the best
interest of the child.
 138
a
9.1 ADOPTION.

Adoption of a child may be done either under customary law or under a statute.
The present discussion will focus on statutory adoption.saa

Adoption is the legal process by which the parental rights of a child's natural
pur"nt are extinguished and replaced by a set of legal relations between that child
and his adoptive parents. The Adoption of Children Act 1952 provides the
mechanism for the adoption of a child. The Act ensures that neither the adopting
parents nor the child being adopted is either taken advantage of or unnecessarily
prejudiced. It also ensures that the rights of the parents of the child being
adopted are properly protected and that no undue influence is brought
to bear on
them.

9.1.f Who may adoPt?

under section 3 of the Act the following persons may adopt a child'

(a) A husband and his wife;

(b) A widow or wldower or an unmarried or divorced person;
i"i e married person whose spouse has been mentally defective for a period of
seven years immediately preceding the adoption application; and
(d) A married person who is separated by a judicial decree'

These persons must be at least 25 years.5a5 No person is allowed to adopt a child

of 16 yeals or more unless the adopting person is 25 years or older than the
child.s'i6 There are however two exceptions to the above restrictions. These are
that a widow or widower or an unmarried person can adopt a child of his or hers
that has been adopted by another person, irrespective of whether or not the
adopting pefson is 25 years or less or whether the child is 16 years or mofe.
restriction.
Thus, a parent can adopt his or her own child irrespective of the age
This is to avoitl a contraeliction whereby a parent would be barred from assuming

tu. For the procedure ot statutory acloplion, the reader is referred to I. Schapera A llandhook of
Tswana Law tmd Castom, bndon, Frank Cass" 1955 and S. Roberts Tswana Family Law,
I".ondon. Sweet & Maxwell, 1972.
i's Where it is cliscovered aftcr an adoption order has been made that the
adoptive parent was
less than the stipulated age, the orier will be set aside by the High
Cr:urt' See the South
volczer 196A Q)
Alrican cascs o{ .&x pa rticommissioner for chitd wetfare: In re Adoption
s.A. 312 (O) and Ex parte Commissioner of child welfure: In re Adopted chilil 1966 (2)

s.A.301 (C).
srrr the Acl.
5"* seclion 3(2) of
138
t
L39

parental control of his or her child because of age. A married couple may jointly
adopt a child of one of them irrespective of the child's age, provided that the
ute. husband is at least 15 years older than the child of his wife and the wife 10 years
older than the child of her husband. The object of these age requirements is to
achieve an age difference between parent and child similar to that found in
ural nature, and to discourage sexual exploitation as far as possible.
hitd
the 9.1.2 Who may be adopted?
ting
rril,v Any child under.lhe age of 19 years may be the subject of an application for an
:irg adoption order.-t47
ron
9.1.3 Where to adopt?

Application for an adoption order must be made by the prospective adoptive

parents 1o a Magistrates Court in the district in which the child to be adopted
resides.sas Before the court can make an adoption order it is enjoined to saiisfy
itself,-ejther by evidence in an affidavit or by oral evidence on oath given in
court.-ta') that:

lcf (a) the applicant(s) is qualified to adopt;

(b) the applicant(s) is of good reputation and have the means to maintain and
educate the child;
(c) the adoption will be conducive to the welfare of the child; and
hdd (d) the requisite consent to the adoption has been given.'ts0
-L^
J-C

of these requirements, that of the consent is of vital importance and

Frs consequently, further elaboration on it will be made. Where both parents of a
-L-
L.-; legitimate child are alive, they must give their consent to the adoption but where
fqr
one parent is dead or has deserted the child,55r the consent of the other will
br. suffice.'si2 If the child is illegitimate, it is the mother's consent that is required.
ilg
"t See section 2 of the Act.
f..
'u* See section 4 of the Acl. 'I'hc court used to be reslricled lo one presitiecl over by a Magistraie
Grade I but this has been abandoned in favour of all grades of magistrates. See s. 2 of thc
Adoption of Childrcn (Amendment) Acr 2000.
*:.'i su"
See secrion 4 (6) of the Act.
f---1 t"' See section 4 (2) (a)-(d) of the Acr,
t: ''" Section 5 (5) ol' thc Act provides that for the purposes of the Act, a father is to be presun:..
t' (subject to rebuttal) to have deserted his child if he is living apart from the child and ti:=s ::. :
provide or contribute to the pmvision of lodging, food and clothing for the child.
s53
See seclions 4 (2) (d) (i), (iii) and (iv) of tle Act.
a
I
I

il
140

She may do so without her parent's or guardian's assistance if she is a minor, or

her husband's assistance if she is a mariied woman.tst In the event of the death
i

of both parents of a legitimate ot, in the case of an illegitimate-,child, of the

mother, ihe child's gUarJian's consent is required for the adoption.ssa Where the
child is more than L0 years of age, his own ionsent is also require<l.sss

Where the adoption application is in relation to a child -

(a) whose parents are dead and over whom no guardian has been appointed;
(b) whose parsnts have deserted the child; or
reason of mental
icj wtrose parents are, or one of whose parenls is, incapable by
disorder oi defect of consenting to the adoption, the Minister of Labour and
Home Affairs may appoint any suitable person to be the guardian of the child for
the purpose of rhe proceedings.:'oo This guardian's consent is requircd tbr the
adoption."'

The requisite consent must be in writing and signed in the presence of a District
Commiisioner, who shall attest the consent.:)o The consent must set out the
names of the proposed adoptive parents but on the application of such parents
and with the consent of the natural parents or guardian of the child, the court
may, with the approval of the Minister of Labour and Home Affairs, dispense
witir the identity ot any other particulars of the proposed adoptive parents if this
will be in the interest of the child.:"

9.1.4 l,egal effects of adoPtion

Section 6 (2) of the Act Provides that, subject to the provisions of section 14 of
the Acr,s6o an adopted child shall for all purposes whatsoever be tleemed in law

ttt (2) (d) (i) cf the Act.

See section 4
-'saSer.secliunr a (2) (d) (ii) of the Act.
"' See section a {2) (c) of the Act.
5i"
See section 5 (1) oi the Act.
tot
Se" scclion 4 (2) (d) (v) ol lhe Act.
See secrion 4 (3) gf the Act. This applies to consent given within Botswana' Although
ssn the

subseclion provides that il the consent is given outside Botswana it must signcd and attestcd in

the manner prescribed, the mauner of such attestation is yet to be prescribed.

s5u
See the pnrvixr kr section 4 (4) of the Act.
rt'{'That .""rinn prgvides that:"The adoption of a person (a) shali not prohibit or permit a

marriage between lhat person and any other person, which would not have been prohibited or
permitied if the adoption had not taken place, provided thai no marriage shall be contracled
between an aciopted person who is under the age of 2I years and his adoptive parent; (b) shall
not prohibit under criminal sanction any carnal inlercourse between lhat person and any other
 141

to be the legitimate child of the adoptive parent.56r It therefore follows that such
a child will acquire the surname of the adoptive parents unless the adoption order
provides otherwise.-sot All rights and legal responsibilities existing between the
child and his natural parents and their relatives, except the right of the child to
inherit from them under the intestacy rules, are terminated.-s63

The above effects are subject to the following exception:

(a) An adopted child shall not by virtue of the adoption become entitled to any
property devolving on any child of his adoptive parent by virtue of any
instrument executed prior to the date of the adoption order unless the instrument
clearly conveys the intention that, that property shall devolve upon the adopted
child.-"'" Thus, if before the adoption, the adoptive parent had made a will in
which he had lefi property "to my children"; if he was to die shortly after having
adopted a child, such a child may not come within the ambit of "my children" in
terms of will according to this exception.-56s He may however, inherit under a
will made after the adoption.''oo

person, which would not havc been so prohibited il the adoptkrn had not taken place; an<t (c)
shall not exempt fiom criminal sanction any carnal intercourse tretween that person and any
other person, which would have been prohibited under criminal sanction if the a<.lcption had ncit
taken place." These provisions make it clear that adoption cannot clo away with the legal
conssquences ol bknd relationship. Thus impediments to marriage based on consanguinity still
remains in spite of the adoption. llowever, marriagc between the child and his adoptive parent
is prohibited only while the child is under 2lyears of age. lt will follow lbr (c) above that
outside the bounds of matrimony, sexual intercourse between the adoptive parent and the
adopted child will amount to a criminal offcnce. This is bccause seclion 6 (2) cieerns an atlopted
cltild to be the legitimate child of his adoptive parent tbr all purposes whatsoever subject to s.14.
tt" See the remarks
of Maritz .1. in the South Aiiican case of Cohen v. Minister for the Interior
1942T.P.D. 151 at pp. 153-154.
'nt See section 6 ( l) oi rhe Act.
'n' Se. section 6 (3) of the Act. The sub-section is silent on the right of the natural parents and
their relatives to inherit fnrm rhe adopted child.
"t See proviso (i) to section 6 (2) of ihe Act.
tt" s"" the South African case of Eoswe ll v.
van Tonder rgTs (3) s.A. 20 (A.D.) (The report is
in Afrikaans)'I'his case is discussed by I.I). Murray {1975) Annual Suntey of South African Law
?83-292.
'tt' se" the South Aliican case of venter v. Die Meester lgll (.4:)
s.A. 482 (T). The report is in
Aliikaans but the English summary indicate lhat thc court heid that two adopted children q.,ere
entitled to inherit from their adoptive parents, who had no natural chiltlren, in terrns of a mutual
will made alier the adoption.
 r42

(b) The adoprion does not give the adopted child the right to inherit under the
ini.stucy rules from any relalive of his adoptive parents's67

to
(c) The court may order that a natural parent or guardian should have access
itre adopted chikl for a maximum period of two years after the adoption,
of the child.s68
frovided that this will not be to the disadvantage

9.1.5 Rescission of the adoption order

Section 8 of the Act allows the following persons to apply to the

Magistrates'
Court for the rescission of an adoption ord"eion the grouncis ltated''6n

(a) A natural parent may apply on the ground that he did not consenl to
the
without his
uioption and tirat the order o}aOoption should not have been made
was detrimental to
consent or for reasons set out in the application the adoption
the child. An application based on lack of consent must be
tlrought within six
months after thi applicant became aware of t!9 adoption, and in
any case not
is based on
later than five years after the order was made.570 If the application
detriment to the chiid, it must be brought within,two y.uts."' The
adoptive
parenls must be given due notice of the application'' ''

(b) An adoptive parent may apply on the ground that his adoption of the child
ias inelucei by fraud, .istlpi.ientation or reasonable mistake, or that the child
or
is a mentalty disordeied or iefective person,573 and that the mental disorder
was to
defect existed at the time of the maklng of the order, or that the adoption
the detriment of the child. The application must be brought within
six months
unless it is
after the applicant became aware of ttte ground on which. it is based,
based on d"tri*"nt of the child, in which case it must be brought
within twtl

5t" lhe Act.

(ii) to section 6 (2) of
See provisr:
5t't i
See seclicln of the Act. This
does nct include a pafeilt who has agreed in lerms of sectk:n 4
(3) ro the non tiisclosure of lhe idcntity of the adoptive parents'
i;'t qee ,,Remedies against nult anO void acloption orders" ( I 974) 9l South Aftican Lttw
E. Spiro
Jaumal168,
ttn (1) (a) ancl provist> (i) ter thc section'
See seclion S
:tt See proviso (iii) to section 8 of thc Act.
ttt See section 8 (2) of the Act.
5?1
A mental riisoiiered or defective persofi is not define<l consequenily; they should be taken as
having the same meaning as those used in s. 2 tif the Mental Disorders Act
1971'
 143

years afrer the making of the order.sTa

The Minister of r,abour and Home Affairs
and the child's natural parents musr be given
due notice of the appficairon.ifi^*"'

(c) The Minister of Labour and Home Affairs

or the child's former guardian may
appfl on the ground the adoption was to the detrirnent of the chitd.
The
application must be _that
brought wittrin rwo yea,, of the making of the
order' If the minister is the applicant, he must give notice to ;"d;;
the child,s natural
and adoptive parents and guardian, if they .un
# rounJjli The Act is silenr on
the giving of'notice where the applicant ii
a former guardian. It is submitted that
in such a case he must give notiii to the remaining p-arties.

on the hearing of the application, the court must satisfy itself that
the requisite
notices have been given, give interested parties
ttre opportunity to be heard,
either by orai evielence or by afficlavit afteiwhich
it mailontirm or rescind the
adoption order. Provided that the court shall not rescind
an order of adoption on
the application of a natural parent if it is satisfied
that the saicl parent is unfit t0
have. custog,{ of the child and that it is in
the child's interest that the order be
conllrmed.' ''

The effect of a rescission orcler is to restore the

child to his pre-adopfion position
for all purposes. Anything lawfully d-one whilst rhe
adoptiJn order was in force
is not affected by the rescission ordlr.sT8

9.1.6 Miscellaneous provisions concerning adoption

Appeals from an order for adoption or from rescission

of an adoption order
from refusal to rescind an adoption order lie with
the rr;gi' s;r""" vruLt or
c""H
vr

An adopted child may not be removed from Botswana within

twelve months of
the making of the adoption order.580

The adopted child is capable of atloption and

upon making of an adoption order
for the adoption of a previously adopted child *t tn* trguT
the
"onr.quences 'f

secrion s ( t) (b) and provisos (ii) and (iii)

l]l :-- sccrion
-' Scc to secrion B,
8 13) ol'thc Ac{..
seerir)n I (i). tr f tlrc)(iii)
.1;:r.
"' Se c scction 8 (5 ) of rhc Act.
anti (4;.

"* S"e section a 1r>1of the Act.

t
'''
See see tion 9 1l ) ol rhc AcL.
t^"
S". scction lt) ol thc Act-
 144

earlier adoption shall determine, except in so far as the adopted child has
acquired any property by virtue of the earlier adoption.sBr

Generally, it is prohibited for any person to give or receive a consideration in

respect of an adoption. However, with the consent of the court which made the
order or to which the application for the order is made, a natural parent or
guardian may give or receive, and an -adoptive parent may give or receive, a
consideration in respect of the adoption."'

Provision is made fcrr the birth certificate of the adopted child born in Botswana
and whose birth has been registered under the Births and Deaths Registration Act
1969 (as amended)58' to be amended in accordance with the facts of the
adoption.

Finally, the Act does not prevent or affect the adoption of a child subject to
customary law by a person subject to the same law.tno

9.2 MAINTENANCE OF A CHILI} BORN OUT OF WEDLOCK

As stated earlier, under the common law the parental power over a child born out
of wedlock is veste<l in his mother unless she is herself a minor.'t8s However, the
child's right to be supported is not affected by his illegitimacy.ss6 Consequently,
it is expected that such a child will be supportcd -!y his father as well as his
mother within the limits of their financial resources.to' The obligalion to support
the child lapses when the child reaches the age of 21 years, or marries, or
becomes self-supporting. lt has been held that if an order for the maintenance of
such a child is made under the common law, such an order may extend to the
time the child attains the age of 21 years and that the limitation of 13 years

t*' Seesection I I ( 1) of the Act.

t*' Seescclion 12 of the Act.
t*'See the Births anri Deaths Registration (Amendment) Act 1998.
t8*
See section l6 of the Act.
tn't
S*. the Soulh Afiican case af Dhanabakiumv. Subramanian 1943 A.D" 160 at p" 166 where
it was held that such a minor cannot be the child's guardian. See also the South Af ican case of
Nokoyo v. AA Mutttal Insurance Associttti.on Ltd. 1976 (?) S.A. 153 (E). Under cusfomary law,
an illegitirnate child belongs to the motlrer's descent group and her father exercises the parental
p()wcr ovcr thc chihl. Sce Schapcra op. cit. atp. 172.
t*t' See The South A{rican cases of Lamb v. Sack 1974 (2) S.A. 670
{T) and Louvi v. Van
Renshurg 1gli? (3) S.A. 36 (SWA)"
5'7 Ses Moremi c& {Jrs. v. Mesotlfut Misca No. 1311996 (ll .Tanuary 1997), unreported and
Magibiselav. Meqobe PA02j2 ts.L.R. 53 (CA) at p. 55.
 I45

imposed by section g of the Afliliarion Procee<lingsAct

1g70 (as amended) does
not apply to such an order made by the High Couri.sss

More often than not.the responsitrility to support the

illegitimate child is left to
the mother alone and in order tc make sure fathers
of suJrr children are alive to
their responsibilities the legislature has provided a means
to compel fathers to
contribute to the sulport of such children under thc
Affiliation proceedinss Act
1970 (as anrended):5". The Act is designed to provide,
interuttiu,56r;;;r;;;;;
clear procedure for an unmarrie d womin to obtain support
frcm the father of her
child. Any person having the custody of such a chitd may also take proceedings
to obtain support for such a chiki.

In: gl?:-.dings may-be initiated any time wirhin five years afrer rhe birrh of rhe
chrld' -' by iodging of a contplaint in the magistrate court. The proceeclings are in
respect of children less than 1g years ofi age and may be brought in anv
magistrate's court i*especrive of the rank of thJpresicling
^'' ""r
magistrat...il
On hearing, the application, if the court is satisfied as
to the sufficiencv of the
evidence adduced, it may make an order that the said
father;t;;';r;;i;;
P1{}0 a month for the maintenance and education
cf the child. 'rhe curencv of
such an order lasrs till the child reaches the age of
L3 years.ser wh;;;h;
father is found impecunious, the courl rnay order a social
worker to assess his
estate or socio-economic standing to determine
how much he can contribute to
the maintenance and education of the chilcl ancl prepare
a report which is to be
submitted to the court. on receipt of such u ,.plrt,
the magistrate,s court shall
ref'er the case together withLhe ieport to a customary
ccurr, which shall apply
customary court fo ihc casc..".

'*^ Sce h{agibisela v. Mogobe op, cit.

t*"
see the Afllliation Proceedings (Amendment) Act 1999.
For a commentary on the Acl see
E'K' Quansah "Botswana's Affiliation Proceeelings (Amendment)
Act 1999,'(2000) 44Journal
of AJi-itttn Lav' 119' Thc. Act also aliows u p.i.nn orher
than the mrthcr to bring an acrion
against the mother lbr maintenance' See sccrtn 4
of thc .l999 Act amendir.rg section 3 of the
prr'neipirl Act.
5e1) 'lhe
Act also provides a procedure for thc delermination ol thr: patcrnity
chilrlrcn. See Mau\"-e v. Taolo
of illegitimate
5'' See [2000] 1 B.L.R. 2g7.
s. 4 as amcniled b3, s. 5 oJ'tho 1999 Act.
ry sec|l13.:;;. reee Acl cerrain cusromary courrs nral arso
*::::::.:"i::::11€rr
be auihoriscd io_hcar maintenance suir of this type.
^: S.*
t"t
Sectir:rr g of the Acr.
t"'' sce sccri<>n (1
as,mended by section 7 of rhe rggg Act. It is hopcr.r
rhar in appiring
cuslomary law' llre courl may hc innovaiive in deciding
how lhe di:lindant mav csnrribuie :c rhe
 146

In Mashab&ne v. Moktsanlcweses the High Court was asked to determine the

fbllowing points in limine (at ihe very beginning) (a) whether maintenance of an
illegitimate child existed under customary law; (b) whether a customary court
had jurisdiction to determine issues of maintenance of an illegitimate child; and
(c) whether a customary court in awarding ?4, Offi damages against the
respondent for impregnating the applicant had decided on the maintenance of the
child. It was held that maintenance of an illegitimate child existed under Tswana
customary law, although not in the form of periodic payments as was the case at
c<lmmon law. Under Tswana customary law maintenance related tO the
provision made for the upkeep of an illegitimate child, while seduction related to
an unlawful sexual relationship with a girl for which damages were payable. It
was also held that under section 2 Proceedings Act (as
of the Affiliation
amended) a customary court, if authorised by an instrument, has jurisdiction to
hear and determine maintenance proceedings. In the instant case no such
authorised instnrment existed. Furthermore, the award of P4, 000 damages was
in respect of the seduction of the applicant and not fcrr the maintenance of the
minor child. Accordingly, the court took the view that the question of
maintenance was not decided by the customary court and consequently the
matter was not res judicata (matter conclusively decided).

Where the paternity of the child is in issle, the Affiliation Pro-ceedings Act also
provides foi the settlement of the issue.se6 ln Maawe v. TaoloseT the High Court
stressed that in cases of disputed paternity, every effort should be made to
procure carroborative evidence and the most obvious in that regard would be for
the parties to subject themselves to a blood test. Even more important is DNA
testing although such a facility is not widely available in the country. The
seriousness with which the court viewed the matter can be gleaned from the
following dictum:

"l{ should not be forgotten that a case involving disputed paternity, although it involves only two
protagonists in the court, atlects the fundamental right of a child who is. needless to say,
unrepresented before lhe court. This alone justifies the court's greater attention and involvement
in such cases. They cannol be ct mpared to olher civil cases where the simple onus of proof most
ollen determines the outcome. One can quite easily imaginc thal cnc or both <l{ the parties might
promote their own secular interest in the outcome of the proceedings without regard to lhe

upkccp of the child. ll will be appropriale, lbr instance, for the couft to order the det'endant to
contribute in kind (such as foodstutl) instead o{ in cash to the upkeep of the child,
"" 12ootl1 l B.L.R. lrt5.
5''t(r
5"" s. 3 ol thc Act.
5"1
t)p. cit.
 L47

interests of the child who is voiceless and it is only the courls that have the ability and, I should
say, the rcsponsibility to speak up for the child." -ttg

The court referred to Article 7 (1) of the UN Convention on the Rights of a Child
see
which Article provides, inter alia, that a child has a right to know and to be
cared for by his or her parents and urged that both the Executive and Judiciary
branch of government should make it their duty to adhere to this Article.

9.3 CUSTODY OF CHILDRSN BORN OUT OT WEDLOCK

Under common law parental power over a child born out of wedlock
(illegitimate child) vests in his mother who, unless she is herself a minor600 has
the right of guardianship and custody over the child. The father's only right
over the child is one of reasonable access.u0' Where it is in the interest of the
child, however, the court, as the upper guardian of all minors: may deprive the
mother of guardianship or custody and transfer this to the father or a third party.
'fhe "interest of the child' approach to custody of such children is gaining
currency; and the mother's right is gradually being regarded only as a prima
fucie ot^e, This situation may be exemplified by the decision in Mfundisi v.
Kabelo6a2 where the view was expressed that while there is no inherent right of
access or custody for a father of a minor illegitimate child, such a father, like
other third parties, has a right to claim such access if he can satisfy the court ihat
it is in the best interests of the child.603 Chatikobo J. held that the predominant
approach shared by the case law in South Africa seemed to be that the
illegitimacy of the child was not the compelling reason for denying access by its
father. Rather it is the interest of the child, which must predominate, adding that:

"...th€ mere fact that a person is lhe nalural lather of his illegitimate child creates
sulficiently close kindredship such as should make it highly desirable that the father be

t"* At pp. 300-301.

This dictum was reiterated in Supitzg v. Suping [2002] I ts.L.R. 333 at p.
JJ,/-
5t'e
Botswana acceded to the Convention in March 1995 but entered a reservation as lo Article
I . For a survey of attempts to implement the Convention, see S. Morolong "lmplementing the
Convention on tlre rights of the child: l)evelopments in Botswana." in The International
$1rvey of Family Law (2AA$ Intsrnational Society of Family [aw, at p.67-82.
the South African case of. Dhanabakium v. Subramanian 1943 A.D. 160 at p. 166.
n"t
See the South Aliican cascof Matthewsv. Haswari 193'1 W.L.D. tt0 at p. tt3.
't''1200-31 2 rJ.r..R. r29.
t")rAtp. 132. ThecourlreliedontheZirnbabweancase of.Dauglasv.Meyers 19S7(1)S.A.
910 and the south Aliican cases of F. v. B. 1988 (3) s.A. 948, B. v. P. 1991 (4) s.A. 113 (T),
Van Erkv. Holmer 199L (2) S.A. 636. S. v. S. 1993 (2) S.A. 301 and 8. v. 8. 1993 (2) S.A.
2t t.
 148

granted access to the child to snabie a bond of affinity to dcveiop. Any nolion of such a
father being regarded as a stranger to his own child is anachronistic and detrimental to
ths interests of ths child. I am persuaded to the view fhat unless thc intcrcsts of the
minor child would be adversely affected by the father's gaining access to it. the clrild's
natural tather should be granted access as a mattor of course. By advancing this view, I
am not suggesting a change in the legai position. Ralher, I am merely acknowledging
that anything which is in the interests of the child should be permitted: the promotion of
the agnate relationship tretween the father and his illcgitimatc child is in lhe interesls of
the child unless thers are oveniding circumstances which are detrimental to the child's
..4)(U
welTare.

He lurther stressed60s that different consi<ierations would apply where the birth of
fhe child was the result of a fleeting sexual encounier or even rape. Where the
birth of the child resulted tiom a live-in relationship and the father has shown
devoiion and commitment to lhe welfare of the child and his request fsr access
will assist in the upbringing of the child, there should be no bar to him getting
access. Accordingly, the courl granted access to the father'

The facts of the case were that the parties lived together between 1994 and 1998
during which period a baby girl was born to them. During this period, the
applicant provided the material needs of the child and took out an educational
insurance policy for the child's benefit" In addition he registered the child as a
beneficiary on his medical aid scheme, made her part Lreneficiary of his terminal
trenefits accrued with his employers and opened a savings account for her at a
Building Society. Subsequently, the relationship broke down and the respondent
married another man. The applicant brought the action to gain access to the
child.

This case represents a small but significant $tep towards the recognition of full
parental authority of a father of a child born out nf wedlock over that child
although the court refused to advocate for a change in the current legal position.
It would seem from the facts that the ccnstitutionality of the common law
position that a falher of a child Lrom out of wedlock does not have an inherent
right to access of the child was attacked. However, the court did not address the
issue as it found it unnecessary in view of the conclusion that it came to.
Nonetheless the constitutional argument that the common law position is
discriminatory has found favour in South Africa606 and hopefully it may
influcnce the courts here.

""0 Pe, Chatikobo J. at p. 134.

t"t5
Ar p. 136.
""n See Fruser v. Children's Court, Pretaria North <k Ors. 1997 (2) S.A. 261 (CC).
 149

CIIAPTER TEN

OUTLINE OF PROCEDURE
The Matrimoniar causes Rules (MCR)
and procedure in matrimonial causes. The .lg73-particularly governs the practice
High court'Rut.* (HCR) and any
other enactment that the regislature may deem
6t to enact generalry supprement
the Matrimoniar causes Rures.607 The court
rures are accompanied by Forms,
which express what is being done or what has
arrealy r".n aon.. such forms
constitute a record of the steps taken or to be
taken inthe sui1. An attempl will
be made to explain the procedure for matrimonial
causes by illustrating the main
stages of a divorce action. A divorce
action is chosln because it is the
commonest type of matrimonial causes proceeding
that one is likely to .ncount*,.
in practice' This is not to say that the ofrer princiiat
reliefs are
it is assumed that once a grip is had of the divorce p*".Jur*, not important but
mastering the other
procedures will not be difficult.

A divorce proceeding, rike any other civil proceeding,

is brought by way of an
action instead of a petition us ir done in England.
ttre oeierence between these
two modes of commencing civil proceedingiis
that un o.tiun is commen;*
wrif of summons while.a-petition-is by notile
of motion-supported by an affidavit
*;
as to the facts upon which the petitioner
reries for rerief.60i"

IO.I ACTING FOR THE PLAINTTFF

10.1.r Applying for reave to bring action for

divorce within the specified
period

Al application under section 21 of the Matrimonial

causes Act for leave to bring
an action for divorce before*the expiration
of two t;ar" rro* the date of the
marriage is governed by MCR r. +. itre
apprication is maoe on notice of motion

"{}7 see sccli*n 3 the l9f3 Rules. In this chapter, urless

'f
to the 1973 Matrinronial-causes Rules (MCR)
otherwise srated. re ference io rules is
anrJ rel'erence tn p,,r* is to lhe F'rm
schedule to the Rules' Also rel'erence in thc
to orders (ord.) refers to those of the High
(HCR)' The High court Rulcs are made by court rules
the chiel Justice under a power conferred
him bv secrion 28 of the High Court Act on
197'6 a1a1lnfeg. o;"i"il;r."edure
G'M. Kakuli ci,ir procedure and praaice generalry, see
in *e rligtz Court of Boiswana, Lohatsc,
Print' 200 l' See also G'M. Kakuli ''Thc history Masler
and deveroprnent of the mle-making
in the corrls of Botswana and suggesred ref.rms,. \ power
Internatianal Law Jounzal of Southertt ,{frica ) ixx
rissr)
\ '' ' r'' cr*parative and
..,,.
t'n 190.
: ' r\)'
See Ord. 6, Ord. 12 HCR and r. 5 MCR.
 150

supported try an affidavit as to the facts upon which the applicant relies for
relief.60e The affidavit must exhibit a copy of the proposed declaration and state
the grounds of the application, particulars of the hardship or depravity alleged,
whether there has been any previous applicalion under the said s. 21, whether
any, and if so what attempts at reconciliation have been made and the particulars
of any circumstances that may help the court in determining whether there is a
,*uronubl. probability of reconciliation between the parties.6r0 The applicant
should serve the respondent with a copy of the application and of the supporting
affidavit unless otherwise directed or the application is made ex pilrte, a
certificate of marriage should be supplied.

The court has to be satisfied that the case is one of exceptional hardship suffered
by the applicant or of exceptional depravity, on the part of the respondent but in
determining the application the court must have regard to the interest of any
minor child of the marriage and it must also consider whether there is a
reasonable possibility of a reconciliation between the parties trefore the
specified period.

NOTTCE OF MOTION

IN THE HIGH COURTOF BOTSWANA

HELD IN L'BATSE
case No.

ln the matter of:

GI.ADNBSS GABORONE Applicant

And
PIUS GABORONE Respondent

NOTICE OF MOTION

TAKB NOTICE that Gladness Gaborone (hereinaller calied "the applicant") intends to make
application to this court fbr an order:
For leave t<l bring an action firr divorce before the expiration of two years frclm the date
of marriage,

']{}t Sde Ord. 12 r. 1. The notice of motion shall be in the form of fbrm 7 of the first schedule to
the HCR.
""' Rule 4 {l}. 4. Rule 4 (2) (a) an<} (C). 5. Rule 4 (3).
 151

and that the accompanying affidavit of Giatiness Gaborone will be used in support thereof.

TAKE NOTICE FURTHER that the Applicant has appointed Messrs pheto, phure &Cs.
Attorneys of 123 Dumela Crescenl Gaborone to accept notice and service of all process
in these
procecdings.

TAKE NOTICE FURTHER that if you intend opposing this application you are required: -

(a) to notity the applicant's attorney in writing on or beiore the expiration of 7 days liom the
date ol receipt tll this notice and

(b) within 14 days o1'service o{ this notice upon you, to file your answering affidavirs, if any,
and further thal you are requirecl to appoint in such notification an address fbr service of all
dricumenis in these proceedings.

Il no such notice of intention to oppose is given, the application will be made on thc day to
tre
alli:calod by thc Registrar.
DATED at Gaborone this day of June 2004.

John Pheto
(Attorney iirr Applicant)
123 Dumela Crescent
Gahorone

TO: The Registrar

The High C-ourt
P/B 001
Lobatse.

ANI} TO: Pius Gaborone

22 lnvers I;ne
Gaborone (Respondent)

AFnnAVru
IN THE TIIGH COURTOF BOTSWANA
HELD AT LOBATSE
Case No.

In the matter of:

GLADNESS GABOROI{E {nee BOTLHOI,E) Applicant

And
PIUS GABORONE Respondent
 152

AFFIDAVIT

Gaborone, the
I, Gladness Gaborone, a secretary, aged 28 years, of Plot.4422, Kweneng Road
above-named Applicant, do hereby make oath and say as folkrws:

14th' of February
1. I married Pius Gaboronc (hercinafter referred to as the respondent) on the
2003 at the District Commissioner's oftice in Gaborone'

the marriage, namelyr Sonny Gaborone, a male aged 1

year'
2. There is one child oi

Crrurt or any other court either by

3. There has been no previotts application in this Honourable
the respondent or by myself toi teuue to begin an action for dissolution of marriage within 2
years frerm the dale of the marriage.

222 l,overs lane Gaborone'

4. Since I married the respondent, we have been living together at

at the matrimonial home and

5. Since lhe 1" of May 2003, I ceaseci to live with the respondent
now live with my parents alPlaL 4422 Kweneng Road, Gabomne '

6. The grouncls on which apply to the Honourable court lbr leave to bring an action for
I
t0 the respondent are the
rlissolution of marriage within twi: years from the date of the marriage
suft'ered by me'
exceptional depravity o1'lhe respondent and the exceptional hardship

aduhery on a couch in our

7. A month atler Our marriage, I caught the respondent committing
sitting room with one Charity lrklba, a first cousin of the respondent'

room at the Adams

8. Two months later, I fbund the respondent in a compromising position in a
AppleHorelinGaborone'withawomanwhowasunknownt0me'Whenlcontiontedthe
re.spondent with the allegation of adultery, he slapped me
in the tace and said "what if I had
teeth as a result of the said
commitled adultery; it is ione of your business." I sutfered two broken
of the doctor who treated me at the Princess
slap and I now produce and marked GGl. a roporl
Marina Hospital in Gaborone'

assaulted me for asking him

9. On the l*' c{ May 2t}03, the respondent after coming home drunk,
I two broken ribs and a concussion
tc minimise his drinking. As a result c{ the assault sufTered
of doctor who treated me al the Princess Marina
and I nOw procluce anel inarke<l GGIi, a report a
Ilospital on that occasion.

cohabitation with the ::sr mtulElrlo

10. I left the respondent on the 1*' of May 2003 since which date
ceased.

I l There has been one attempt at reconciliation but this proved unsuccessf'ul.
 153

12. I now produce and marked GGIII, a copy ol my progrsed Declaration to be apached
to rhg
writ of summons. The contents thereof are true.

Sworn and signed before me at Gaborone this day of Juno 2{}04, ihe deponent having
acknowledged that she understands the contents of this affidavit.

Deponent

Commissioner of oalhs
Name:
Olflce held:
Time:
NOTES

1. The affidavit must contain only statements of facts anci circumstances to which
-the witness depr:ses either of his own knowledge, or from information that he
believes to be true in which case the source of such information and the grounds
for such belief must be stated.6rl

2. The affidavit must not contain extraneous matters by way of objection, prayer?
legal argument or conclusion.6l2

3. The aflidavit must descritre the deponent, his place of abode and his
occupation. It must be in the first person and must be divided into paragraphs
numbered consecutively.

4- The affidavit must be sworn before a commissioner of oaths or other officer

empowered to administer oaths.{'l 3

5. The affidavit will not be valid if sworn before an attorney acting for the party
on whose behalf the affidavit is to be used. Neither will it be valid ii sworn Uifort
any agent nor correspondent of such an attorney, or before the party himself nor
before his clerk.6la

t"' ord. 13 r" 3 (l)"

Sce theEnglishcaseof C/ees,onv.J.wippetttCo.$97713A118.R.54.
1,1,9*.-lrr.3.(2).
"' ' See Comrnissioner of Oaths Act {Cap. (}5:03
I.

t"o
Or,l. 13 r. 14. See the South African cases of Whyte s Stores v. Brid.te NO 1936 TpD 72 and
Abromowitz tt. Jacquet & Anor.1950 (2) S.A. 247 (W) at p. 250.
 154

6. Where the deponent cannot read or write the affidavit must be read to him in
the language he understands and this should be indicated and vouched for by the
person before whom it is sworn.

f0.1.2 lnitiating action for divorce

The action for divorce is begun by a writ of summons like any other civil
action.6l'5 Rule 5 (1) provides that a declaration is to be attached to the sufilmons.
By rule 5 (2), every declaration, unless otherwise directed, shall contain the
information set out in the schedule, as near as may be in the order there set out.
In certain cases r:nly, for example, an action citing the fact in s. 15 (1) (d) as
evidence of an irretrievable breakdown of the marriage, the plaintiff shall attach
to his Declaration a <locument of consent as set out in Form 1.6'o In this latter
case, ihe plaintiff's declaration shall also contain sufficient information as will
enable the defendant to understand the consequences of his signing the document,
and that the defendant is not obliged to sign it, but that if he signs it a decree may
be pronounced in favour of the plaintiff.olT It would seem that the reason the
information required in the declaration should follow the order set out in the
schedule, as near as may be, is to give uniformity to the way in which it is placed
before the court and that in presenting his case, counsel will normally follow the
same order.

10.1.3 Drafting the Declaration

Apart from the information required to be included in the Declaration by virtue of

the schedule, there is no prescribed form which the Declaration should take.
Consequently, the form may represent the individual attorney's drafting style.
The following specimen, while not claiming to be the ideal draft, illustrates how a
good declaration should look like.

t"t S"o MCR r. 5{1), Form 4 and Ord. 6 r. 1 HCR.

616
5.* r. 5 (a) MCR.
nt?
R.515;.
 155

IN THE HIGH COURTOF BOTSWANA

HELD AT LOBATSE Case No. MC t23lgg

In the matter between:

GLADNESS GABORONE (nee BOTLHOLE) Plaintiff
And
PIUS GABORONE Defendant
CHARITY LEKOBA Co-Defendant

PLATNTIFF'S DECLARATION

1. The Plaintiff is Gradness Gaborone (nee Botrhole), an adurr lemale of full

legal
capacity, employed as a secretary at Dumela (pty.) Lt<t.. whose adtiress fur
the purpose of this
suit is CIO John Pheto & Co. 123 Dumela Crescent Gaborone.

2' The Def'endant is Pius Gaborone, an adult male cmployed as a System Analyst at
Internet (Botswana) Lld., whose address for the purposes of tni.
suit is 222 6vers, fane
Gabonrne

3. The co-defbndant is Charity LeLotra, an adult female of lull legal capacity

employed as
a sccretary at lJeauty Stores Ltd. and whose place of residence
is 43?L lezebelstreet, Gaborone.
4' On the l4th February 2003 the Plaintiff was law{ully married ro the defendanr (in
community of property) at the District Commissioner's office in Gaborone,
which marriag" ,titt
subsists. A certified copy of the marriage certiticate is annexed hereto
marked ,,A,,.

5' The PlaintilT and the Defendant have since the maniagc resided
at 2Z2 lnvers, Lane,
Gat:rorone.

6' Ali the parties are domiciled in Botswana theretbre the matter properly falls wirhin the
jurisdiction of the above Honourable courl.

l' There is one ch.ild of the marriage namely Sonny Gabonrne, a male,
bgrn 1,1 December
2003.

8. The said child is now iiving with rhe plaintiff.

9' 'lhere have been no previttus proceedings in this Honourable Court or any olher court
with reference to the marriage.

10' No agreement or arrangement has been made or is proposed to be made between the
parties in respect of the said chiid of the marriage or ancillary
*oti.r*.
11. The said marriage has broken down irretrievably.
 156

12. fhc Del'cndanl committed adultery with Charity Leboka (the Co-Defcndant) and the
has
Plaintiff finds it intolerable to live with the Defendant'

(a) On l4rh March 2003 the Defendant and thc Co-delcndant committed adultery al 222
L,<lvers' Line Gaborone.
(b) On the 161h of April 2003, the Det'endanl committed adultery with the Co-def'endant at the
Adam & Eve Hotel in Gaborone-

13. As a result of the said adultery, the Plaintiff has sul'fered contumelia, has lost the
comlbri, sccicty and consortium ol lhe l)efendant'

14. Furthcr or alternatively kr the above. the Defendant has behaved in such a way that the
Plaintiff cannrit reasonably be expected Lo livc wilh the Defbndant in ihal:

(a) Thc Dci"enclant slappetl the Plaintiff on the 1frlh of April 2003 tlrereby causing hcr to losc
two fronl teeth.
(b) The Dcl'en<lant is an exccssive drinker and refuses to provide mainlenance for the Piaintifl
and tlre chiltl r:f the marriagc notwithstanding that he is in gairifui cmployment. .
(c) On thc l'r of May 2003, the Defendant assauiled the Plaintiff as a result of which lhe
Plaintiff sustainecl injury to her ribs and ccncussion necessitating hospitalisation'

15. Wheretbre the PlaintilT PraYs:

(a) For a ruie nisi for divorce.
(b) Custody of lhc minor child ol the marriage'
(c) Maintenance of rhe Plaintiff ancl the minor child of the marriage pcnding suit in the amounl
6l P500 per month or such amount as would be determined by this Honourable Court.
(<J) Maintenance of fhe said child in the amounl of P250 pcr month until the uhild completes his
e<iucation or is self supporting whichever occurs earlier.
(e) Dainages against the co-del'cndant in the sum of P,5 000 for conlumelia and loss <lf
consorlium of the Defendant.
{f Division rlf the jt"iint eslate.
(g) For costs ol this suit.
(h) For further and/or ahernative relict.

D,ATED AT GABOROI{ETHIS DAY OF 2000

Jahn Pheto
(Attorney for lhe Plaintill)
123 Dumela Crescenl
Gaberrone

'I'O: The Registrar of the High Court

Privaie }lag 001
L:hatse
 157

AND TO: Pius Gaborone

222lnversLane
Gaborone

AND TO: Charity I-ekoba

4321 Jezebel Streer
Gaborone
 158

NOTES

Paragraph 4

Where the marriage was celebrated in Botswana, certified copies of the marriage
certificate will be sufficient proof of marriage.6'8 Ho*eoer, for a marriage
celebrated outside the country, a notarised marriage certificate will be sufficient.
It must be noted here that customary marriages are excluded from the ambit of
the Act,6ie and unlike the English Act, it is arguable that the High Court"cannot
dissolve a polygamous marriage entered into in this country or elsewhere."-"

Paragraphs 5 & 6

These paragraphs are designed to establish the couft's jurisdiction. As notcd in

Chapter Five, the jurisdiction of the court in relation to this type of marriage is
based on either the domicile of either party in Botswana or three years continuous
residence in this country immediately preceding the action if the plaintiff is the
wife. It is therefr:re important that the addresses at which the parties had
cphabited be stated with some particularity and the domicile of the parties should
be specifically stated, that is, the places of abode or residential addresses. This
was highlighied in Etherington v Etherington.b" In that case, the cleclaration
attached to the summons was defective in that the addresses where the parties had
cohabited were not stated with any particularity. The plaintiff only stated, '"The
plaintiff and the defendant had cohabited in Gaborone." No mention was made
of the clomicile of the defendant and the addresses at which the plaintiff-wife had
been a resident for the requisite period were not stated. The court held that the
Rules must be strictly observed and that failure to comply with them would lead
to cases being dismissed or postponed, or to an order that the attorney responsible
for the drafting of the declaration pay costs de bonis propriis (i.e. out of his own
pocket). Furthermore, the court held that the onus of proving residence for the
requisite period rests with the plaintiff and on the evidence, she had failed tcr

discharge it and the action was accordingly dismissed.

6r8See in Civil Act (Cap 10:02) and Authentication of

scction 30 Evidencc Proceedings
Documents Act (Cap 14:02).
t"u
See seclion 4 of the Act.
r'2')
See secticn 47 ol the English Act of 1973. Ii can howevcr, be argued thal. lhe unlimited
jurisdiction conferred on the High Court by seclion 95 o{ the Constitution will {rvsrride lhc
provisions ol sectirin 4 ol the Matrimonial Causes Act 1973. Consequently, the lligh Court
may diss<rlve a customary marriage. See Moi.sakamo v. Maisakamo op. cir. and Mafokate v.
Mafokate op. cit.
n2'
1t l:+1 2 ts.L.R. 3. See als<t Littcoln v Lincrtln [191 41 2 B.L.R. 44.
 159

Paragraphs ll, 12 & 13

If the plaintiff relies on the fact that he has lived apart from the defen6ant for two
years and the defendant consents to the divcrce, the <lefendant is entitled to apply
under section 17 (L) of the Act for the court to consider his or trer tinanciat
position after divorce. It is therefore a desirable practice for a husband who is
relying on section 15 (1) (d) as a fact evidencing irrettievable bre.akdown of his
marriage, to make adequate disclosure of his financial prsition in advance so that
some arrangement may be auived at with the wite tt incorporate it in the
declaration. As indicated earlier on the fact that the plaintiff is anxious to get
the
consent of the detendant to the actlsn, ma.y he\ sui\ disc\osue an{ coni\usron
of an agreement aboutthe detendanf s post divorce financia\ postion.

It is crucial that the conect ground of divorce is stated as provided for by section
14 of the Act with the ptecise fact evidencing the inetrievable breakdown
as
specttied in section 15. lf these are not_done, ihe court is likely
to hold that the
Declaration discloses no cause of action.623

Adultery

The name of the person with whom adultery is alleged to have been committed
must be stated if the identity is known and by section 19 (1) and (2) of the Act, he
or she must be made a co-defendant. ln Bashe v. Batshe,u2, it'*", held that
making the alleged adulteress a co-defendant is necessary even if her name and
address are not known. The court is barred from granting a decree on the fact of
adultery unless the alleged adulteress has been cited oi the plaintiff has been
excused from making her a co-defendant.62a In Dence v. Danie (2),urt the court
of Appeal held thal.contrary to the High Court's opinion that the excusing order
must be made "before proceeding with the action", ..a person may be joinid as a
co-defendant in an action at any appropriate time." It therefoie exercised its
powers under section 7 of the Court of Appeal Act, and excused the appellant
from joining the alleged adulterer as a co-defendant. Furthermore, ttre piaintiff

"t' see Lincoln v. Lincoln supra, Bale v. Bale [l975l B.L.R. 44 at p. 45 antl Mabutho v.
Mahutho I l9B8l B.L.R. 401 atpp.41t-4t2.
"" [19]71B.L.R.52.
")t Dance v. Dunce [1975] 211.1,.R.39. see also Mabuthrtv, Mabutho op. cit.7.
"" 1t9761 B.L.R.43 atp. 47.
 160

must allege that he or she finds it intolerable to live with the defendant. Alleging
the commission of adultery without more is not enough.626

Where it is inten<ied to claim damages from the co-defendant, such damages must
be pleaded.

Behaviour

"The defendant has behaved in such a way that the plaintiffcannot reasonably be
expected to live with him."

Particulars

In WiUiams v. Williams6?1 the following particulars were given of the alleged

behaviour.

"(a) At Selebi-Phikwe as aforesaid -

(i) Def'endant drank excessively and often slept out.
(ii) Defendant frequently assaulted plaintiff with fist and by throwing household articlcs
at her.
(iii) Del'enclant demanded that plaintitf should go back to Francistown and stop following
him, threatening to kill her if she did not comply.

As a result of del'endant's conduct atbresaid plaintiff letl Selebi-Phikwe during 1976 and
has since been living in Francistown.

(b) During September 1977 detendant was convicted of stealing by servant and was scnl
roiail. On heing released from jail about May 1978, defendant came to stay with plaintilf
at Francistown fbr two weeks during which time he repeated his bad behaviour towards
the plaintiff more particularly in that: -
(i) He assaulted plaintiff with tist almost daily.
(ii) On one occasion he threw hammer at plaintiff which missed and broke the door.
(iii) On another occasion he threw a mirror at plaintift, which missed again
(iv) He'broke property in the house and threatened to burn the furniture out of sheer
malice.
(v) He accused plaintiff of having boyfriends and demanded to know who had bought
the furniture.

o:n
Seg MotsLtmiv. Matsumi MC No. t64197 (7 November l!97) unroported where Mosojane
J. heltl that in addition to alleging adultery it must be pleaded and shown to the satisfaction of
the court that the plaintiff tjnds it intolerable to live with the defendant. He struck off both
pleadings as lhere were loo many flaws in them.
617
MC No. 10/1980 (16 March 1981), unreported. High Court, Serowe.
 161

(vi) Thereafter clefcndant left and has not communicatetl with plaintifT since, and does
not maintain the children."

Although these particulars give the defendant a general idea of the case he is
likely to meet, one would have liked them to be more precise in terms of dates
and occasions on which the alleged assaults took place. This reservation aside,
they seemed to have met the approval of the court although it must be pointed out
that the defendant did not defend the action. It must be borne in mind that not all
condnct will he sufficient for this purpose. It is necessary to maintain a balance
between the sanctity of marriage as an institution approved and supporled by the
State and the desires of the parties themselves.bus

Desertion

o'The
defendant has deserted the plaintitf fbr a continuous period of at least two
years immediately preceding the commencement of the action.',

Particulars

"on the 1st day of July, 2002 tlie defendant left the matrimonial home at 33
L,onely Street, Broadhurst, Gaborone with the intention of bringing the marriage
to an end. since that date. the parties have lived separately and apart."

Two years separation and the defendant,s consent

"'lhe pafties have lived apart tbr a continuous period of at least two years
immediately preceding the commencement of the action and the defendant
consents to a decree being granted."

Particulars

"The parties separated on 12 February 2003 when the defendant left the
matrimonial home at 123 Lovet's Lane, Gaborone. The parties have since that
date lived separately and apart."

By r.5 (4), the plaintiff must attach to his Declaration a document of consent as
set out in Form 1 duly signed by the defendant.

t'28
See Momhala v. Manrbala op. cit
 1.62

IO,Z AMENDMENTOF SUMMONS/DECI.ARATION

The writ of surnmons and the declaration may be amended without leave of court
before they are served but once they have been served, leave is required before an
amendment can be made. An affidavit must support an application for leave to
amend. Such an application, unless unopposed by the dcfendant, in which case it
may be made e-t parte, must be on notice.6lo Care must be taken in drafting the
Declaration to save costs that may be incurred when leave to amend is granted.630
An amendment will generally be allowed if it would not cause injustice to the
other party that cost cannot compensate or if the application is not mala fidt,utt

rO3 SERVICE OT THE SUMMONS

Any person may effect the service of the summons with the accompanying
Declaration in one of two ways, namely, personal service or substituted
service .63:

Personal service is effected in any of'the fcrllowing ways:

(i) BV delivering a copy of the document to the defendant personally or
(ii) By leaving a copy of the document at the defendant's place of residence or
business, or
(iii) By dgljvering a copy of the document at the place of employment of the
clefendant.633

In Leshiga v. Leshigaura Barrington-Jones J. disapproved of the prevailing

practice by which attorneys allow their clients to serve the summonsldeclaration
on their spouses. He was of the view that Deputy Sheriffs should be used for
service of such documents.

Substituted service is rcsorted'to if the plaintiff, or a defendant, in proceedings

involving a third party, has trouble in effecting personal service on the defendant
or other party to the proceedings. In this case, he may apply to the court or a

6l() ^
)ee r. /.
''3{} See Ord. 32 r. I HCR, the rcmarks o1'Rrioney I. in Etherhgton v. Etherington op. cir. and
Sanka v. Kgatla [1968-701 B.L.R. 349.
{r'tr
5"* the South Aliican case of Moolan v. Estate Moalan & Anor. 1927 C).?.D.27.
t'tt
See Ord. 8 HCR.
t'rt
S"" Orri. 8 r. 2 (2) HCR.
63t
MC 21611995 (16April 1996) unrepcrred.
 163

judge in chambers for leave to effect substituted service.63-t An affidavit must

support such an application deposing as to the efforts that have been ma<le to
effect personal service of the document. It must also state the last known address
or place of business of the defendant or other party within the jurisdiction. Upon
hearing the application, the court or judge in chambers may order that substituted
service be effected.on the defendant or other party by sending the clocument by
prepaid registered post to the last known place of residence or place of businesi
of the defendant or the other party. Alternatively, it may be ordered that the
summons be advertised in a local newspaper circulating in the area where the
defendant or otherparty has his last place ofresidence or place ofbusiness.

10.4 ACTING FOR THE DEFENDANryCO.DEFENDANT

By rule 9, if the defendant wishes to defend the action or to dispute any of the
facts alleged in the Declaration, or being the defendant spouse, he wishes to make
any allegation against the plaintitf in the proceedings in which he prays for a
relief; he has 2l days after service of the plaintiffs Declaration to file his plea.
This time limit aside, the defendant is permitted to file his plea anytime before the
matter is set down for hearing although he may not have given notice to defend.

However, the defendant may be bared from taking further steps in the
proceedingsif he fails to deliver his plea within the time stipulated in the rules.636
However, the court may, in its discretion, permit him to appear in person
notwithstanding that the bar has not been removed"

The defendant is free to counterclaim against the plaintiff and if this is the case,
the counterclaim should contain all the information required to be included in the
Declaration. The specimen that follows is a plea to the Declaration set out above.

t'3'
See Ord. I r. 3 HCR.
"tn See Orcl. 27IiCR.
 164

IN THE HIGH COURT OF BOTSWANA

HELD AT LOBATSE MC.123190
In the matter between:
GLADI.IESS GABORONE (nee BOTLHOLE) PlaintifT
And
PIUS GABORONB Defendant
CHARITY LBKOBA Cn-defendant
Party-cited
.'OHN MOSABI

DEFENDANT'S PLEA

TheDel'endantpleadsaslbllowstothePlaintiffsDeclaration:

i. AD PARAGRAPHS 1TO,t.9

The allegarions containecl in the above-mentioned paragraphs are

adnitted'

2. ADPARAGRAPHIl

Delendant admits anri avers that the said marriage has broken down
iffetrievably but denies
by his adJbry ancllor his behaviour as alleged or ai all and
that such breakdcwn has been caused
the plaintiff is put to strict proof thereof'

3. ADPARAGRAPHT2

and Plaintifl is put lo the

l)elendant denies that he has committerl aclultery with the Gr-defendant
slrict prtiol lhercol.

4, ADPARAGRAPH13

iost tti comlbrt and consortium and puts

Def'endant denies that Plaintitf has sull'cred contumelia,
Plaintiif to the strict proof thereof'

5 AD PARAGRA,PH I{
Delendant clenics that hc has behavgd in such a way lhat the
Plainlitf cannol reasonably be
containcd in the parliculars given
expected to live with him. Hc denies oach and every aliegalion
in ihe paragraph and puts Piaintiff to the stricl prooL lhereol"

6. An PARAGRAPI! rs

Dclendant denies that Plaindfl is entitled t'o any reliefs sought.

 165

7' The plaintiff has committed adultery with one John Moshabi (hereinafter called (,,the parry
cited") and the Defendant finds it intolerable to live with the plaintiff.

(a) The PlaintilT and the Party-cited commiued adulfery on or abour the 12th. of June 2003
at the house of the Plaintiff's mother.

Wherefore the Defendant prays:

l. That the said marriage be dissolved
2. That the Plaintiff and the Party-cited be ordered to pay rhe cost of this suit.

Peter Molomo
Attorney for Defendant

Defendant's address for service:

C/O Molomo, Pilane & Karata
I Kings Road
Gaborone.
 166 ,T

NOTES

The defendant has three choices in filing the plea. He c-q1 admit the allegations in
the Declaration deny them or confess and avoid them.u'" Any allegations not so
dealt with are taken as admitted.u3u Although the issuance of the summons and
the filing of the Declaration implies that the court has jurisdiction to entertain the
action, if a plea in abatement initio /iris does not deny this it will be taken as
admitted. In matrimonial causes, this failure to object to the court's jurisdiction
will not have this effect. Thus, the fact that the court has no jurisdiction because
either the plaintiff or defendant is not domiciled within the jurisdiction or a wife
plaintiff has not been resident in Botswana for the requisite period may be raised
at the trial although not specifically pleaded. However, undet seciion 5 (5) of the
Malrimonial Causes Act, when subordinate nratrimonial courts are designated,
failure to deny the jurisdiction of such courts may lead to a defendant being taken
to have accepted the court's jurisdiction. Under the same subsection, a party who
is not resident within the court's jurisdiction may consent to the jurisdiction.
Thus, failure to plead lack of jurisdiction in those circumstances will constitute a
waiver of the point.6'te

The defendant can set up a countefclaim and in that case he must give full
particulars of such claim. The above specimen shows an example of such
counterclaim. The Plaintiff is entitled to reply to the counterclaim within the
stipulated period.

{a) Co-defendant

The decision whether or not to defend the acti<x where a party is made a co-
defendant is entirely left to the discretion of the party concerned. However,
because an allegation of adultery carries a social and moral stigma and the
possibility that cost may be awarded against such a party, may influence the
decision to defend. There is also the possibility that if adjudged to have
cornmitted adultery with the defendant, damages may be awarded against him if
claimed by the Plaintiff.

ntt
S.. Ord, 20 r. a (3) HCR.
6rn Diamoncl Fie lds Arjvertiser Ltcl.
See Or<1.20 r. a (3) HCR. See also the Soulh African case <>l

v. Colonial (iovernment (1909) 10 H.C.G. 258.

ntu
Scc the Soulh Aiiican case ol Plo v. Butk)n 1946 (2) T.P.D. 733.
 r67

10.5 ENTRY OF APPEARA.NCE

Before filing his plea, the defendant must have entered an appearance
to the
summons. This may be done hy himself or by his attorney either prior to o^r
simultaneously with iis plea. Appearance is entered by delivery to
the plaintiff
of a memorandum of appearancl subscribed on the summons' This is sent by
post (pret'erably registeieA h order to prove service by the production of the
t"..ipi; ro the ptuioiitt if he is acting by himself or to his attorney, if an attorney
i. ,.ir.senting him. On the same diy a copy is delivered to the Registrar of the
court. The memorandum of appearance must be signed by the defendant, and
if
he is being represented, by his attorney. The memorandum must specify
a
or lhat of
physical uJAr.r, for service. This may be that of either the defendant
his attorney.

10.6 FAILURE TO BNTERAN APPEARANCE64O

If the defendant fails to enter an appearance, the plaintiff may do the following:
(a) Deliver to the defendant persbnally or try registered post to his last known
ptu"* of residence or last business address, a copy of the Declaralion and a notice
he mus{
informing the defendant that the said Declaration has been tiled and that
8 days of
plead, ani*e, or except thereto or make a claim in reconvention within
or
ih. dut* of delivery or posting of the notice. Proof of such personal service,
must be
postage by registered leiter, aS the case may be, and a copy of the notice
filed at the court's registrY.
(b) If after 8 days no"plea has been filed, the plaintiff may set down the actii:n for
judgment without any further notice to the defendant'
must send a copy of
?.1it the plaintiff decides lo set down the action for trial, hepost to his last known
the notice of set down to the defendant either by registered
place of residence or the last business address. This must be done at least
l0 days
fefore the date of the trial. On the set date, the coufi, after hearing evidence from
the pliintiff, may enter judgment against the defendant or make such order
as

upon the Deciaration; it considers the plaintiff is entitled to.

10.7 DEFENDANT'S CONSEI{T TO DIVORCE

Ifthe plaintiffs Declaration relies on section 15 (1) (d) of the r\latrin'-' '--'
"'
causes Act as evidence of an irretrievable breakdown of the
In;I:-:-:
consent of the defendant is a prerequisite for the decree beins :::'":- -
specimen of such consent appears below'

{'o" r. 7 IICR^
See Orcl. 30
 168

IN THE HIGH COURT OF BOTSWANA

HELDATLOBATSB MCNO.
In the matter lretween:

GLADNBSS GABORONE (nee BOTLHOLE) Plaintiff

And
PIUS GABORONE Defendant

CONSENTTO DTVORCE

I Pius Gaborone being the Defendant in this suit. having read the PlaintifT's Declaration, more
particularly paragraphs 11-13 thereot, and do hereby consent kr a decree of divorce being
grantcd in t-avour of thc Plaintiff on the ground that the marriage between myself and the said
Plaintifl has broken down irretrievably by reason ol' the fact that we have lived apart for a
ctintinuous period of at lcast two years immedialeiy preceding the commencernent of this
action. I hereby acknowledge that I fully undcrstand the consequences of my consent to a
decree being granted in favour r:f the Plaintiff as aforesaid and I agree lc abiile by those
consequences.

Dated at Caborone this day ol 2000

Det'endant

Read, interpreted and explained to the Delendant in

language by mo.

(Name of interpreler in capitals)

and he seemed perfectty lo understantl same before altxing his signaiure/lhumb impression in
my prescnce.

This specimen is based on the assumption that the earlier Declaration is based on
two years separation and the delbndant's consent. If the defendant can read and
write in English, then he need simply sign before one or two witnesses. The
consent must comply with Form I as set out in the schedule to the Act. A consent
*o'
given at the pre-trial conference will not meet the requirements of rule 5 (4).

"'' See Mttraktng v. Morolong op. cit. per Lcsetedi Ag. J.

 r69

IO.8 REPLY TO DEFENDANT'S PLEA

By r. 1i) (1), the plaintiff may file a reply (replication) to the defendant's Plea
within 14 days after he has received a copy of the Plea. If the plaintiff does not
file a Reply, he shall, unless the plea prays for a decree, be deemed on making a
request for set down for trial, to have denied every material allegation of fact
made in the Plea. The specimen Reply that follows is taken to be one in response
to the defendant's counterclaim in the above ease.

IN THE HIGH COURT OF BOTSWANA

HELD AT LOBATSE
MC No. MC123/2003
In the matter between:

GIADNESS CABORONE {nee BOTLHOLE) Plaintiff

And
PIUS GABORONE Defendant
CHARITY LEKOBA Co-defendant
JOHN MOSHABI Party-cited

PLATNTIFF'S REPLICATION

The Plainlitl in Replication to rhe Plea in this suit savs thar:

1. Save in so far as the same consists of admissions she denies each and every allcgatir;n
contained in the Plea and'ioins issue with the Defenclant thereon.

2. She denies thal she has committed adultery with the Party-cited as alleged or ar all.

The Piaintitf there fbre prays

1. As helbre

John Pheto
Attorney for the Plaintiff

Filed this Day of 2003 at the High Court Rcgistry. l*batsc

'fO: Puis Gaborone

222 l-overs l-ane
 170

Gaborone

As a rule, no pleading after a Reply shall be filed without leave of the court.
Where an alleged adulterer is made a party through a counterclaim as in the
above case, copies of all papers served on all other parties before his being made
a party shall be served on him.

10.9 PREPARATION FOR TRIAL

10.9.1 Discovery of documents

Discovery is the procedure by which a party to an action may discover what

documents relating to the matter in issue between them are in possession of his
opponent. Generally, a party is entitled to have lhe nature of these documents
disclosed to him and to inspect them and take copies of them. The procedure for
securing any such document is set out in Ord. 39 of the High Court Rules. By r.1
qf that Order, any party to any cause or matter may, without filing an affidavit,
apply to a judge for an order directing any other party to make discovery on an
oath of documents that are or have been in his possession or power relating to any
matter in queslion in the action. The judge, on such application, ffioY make such
order as he thinks fit.

The party against whom the order is made shall specify in an affidavit, which
documents, if any, specified in the order he objects to producing and the reason
for such objecticn. The affidavit shall be in the prescribed form as set out in
Form 1"6 of the first schedule to the High Court Rules. The party and not his
attorney must swear to the affidavit. Thus, in the South African case of Gerry v.
Gerrybaz it was held that unless there are very special circumstances and the
attorney is in a position of his own knowledge to make a comprehensive
affidavit, he cannot do this on behalf of his client.

10.9.2 Inspection of discavered documents

The documents discovered may be inspected by the party in whose favour the
order was made and he is permitted to take copies of such documents. This is
eft'ected by notice in writing under Ord. 39 r. 5 and the party to whom such notice
is given has 7 days from receipt of such notice, to deliver the documenls. The
notice to produce must be in Form 18. If the party refuses or fails to produce, he

'*'1958 (1) s.A.295 (w) atp.297.

 171

shall be liable to attachment or if a plaintiff, to have his action dismissed for want
of prosecution. If a defendant, he is likely to have his defence, if any, struck out.

f0.9.3 Admissions

By ord. 4a r.1, any of the parties may give notice by his pleadings or otherwise
in writing to the other party to admit the truth of the whole or any part of the
cause. Either party may also call upon the other to admit any document and in
the event of refusal or neglect to admit, the court may order such party to pay the
costs of proving any such document despite the outcome of the action, unless at
the trial the court certifies that the refusal to admit was reasonable. The notice to
admit must be in Form 19 or with such variation as the circumstances may
require.

It is also provided by ord. 4A r.4 that any party may, by notice in writing require
the other party to admit, fcr the cause, mafier or issue only, any fact or facts
mentioned in such notice. This may be done anytime not later than 9 days before
the day for which the notice of trial has been given. If the party to whom such
notice has been given refuses or neglects to admit the same within 6 days after
service of the notice, or within such time as may be allowed by the court, lhe
costs of proving such fact or facts shall be paid by the party so refusing or
neglecting despite whatthe outcome of the cause, matter or issue may be. Such
costs may not be awarded if the court certifies that the refusal to admit was
reasonable or the court otherwise directs. The notice to admit facts shall be in the
form specified in Form 20.

10.9.4 Pre-trial Conference

When pleadings have been closecl6a3 and before steps are taken to set the action
down for trial, the party who wishes to do so shall when possible request in
writing that the attorneys acting for the parties to the action attend a conference af
a mutually convenient time to agree as to the possible ways of curtailing the
duration of the trial with particular reference to the following matters:

t*t Un,let Ord. 2I HCR,

pleadings are deemed to be closed in the following circumstances: (a)
where the pleading subsequent to a replical.ion is not orderecl, then at the expiration of 14 dals
liom the service of the plea or where a replication has been filed, 14 days thereafter, (b) il one
party is barred, (c) if a written agreement signed by the attorneys of both parties to the el'fec: ina:
pleadings shall he considered as closed has been filed at the court's registry and (d) if ei-:.ix:
party apply 1o the court that in his vicw the record in the case is complete and rhar pieeci::i;
ought to be closed.
 T7?

(a)Thepossibitityofobtainingadmissionsoffactsandofdocuments;
examination;
iui rrt. iolding of inspection or
any discovering.of documents;
i"jrt. making of between the parties of reports of experts; . .
idi fft" exchaige
particulars reisonably required for the trial;
i;j*. giving o't uny t'urrher the like, to be used at the trial;
(t) The plans, diagrals, photographs, models and
the trial;
ig) The consolidating of
(h) The quantum of damagesl
ar rhe trial of ^^-iac nf
,-^ +-i^r ^$ copies of correspondence anct
i;i it; ireparation and h"anding inwith copies for the bench and all parties'
other documents as r p*g*JU*tfrfe

of the conference' the attorneys

The order also requires that al the conclusion
which they have agreed a,nd this must
must draw up a minure of the matters upon
be signecl by lhe parties. In the notice
of set down or written request for a date for
the request shall state that the
the hearing of the case, the attorney making
;;;";;"; as to rhe holding of a conference has been observed.
10.9.5 EntrY for trial
the close,of pleadings' enter the
By Ord. 22, theplaintiff shall within 30 days of
case for trial ancl give notice of it to
the liegistrar and all parties.to the action'
and state that the pleadings in lhe case are
Such entry for triafshall be in Form 34
complete. It shail-also sugge$t the place of
trial' If the plaintiff fails to enter the
case for trial wittrin ite sf,iututed iime,
the defendant may, within 14 days after
expiration of the time, enter the case for
trial as stated above' If neither the
the Registrar must certify such
plaindff nor the defendant enters the case feir trial,
under the rules for both parties to
fact to the court after the tirne limit permitted
receipt of such a certificate' lhe court
enter the case for triat rras elapsed. On the
parties will be informed
will cause such a case to be listed for striking ouiand the
struck out unless good cause is
accordingly. on the listed day, the case stra"tt ue
good cause is to be shown' then the
shown why it should go to a hearing. If such
the notice of striking
plaintiff shall file, wi?ftin : Oays of tfrg.se11ice :" htT 1l
to entef the case ftlr trial'
out, an affidavit containing r.*ron, for his failure

10.9.6 Setting down the case lbr trial

for trial may, anytime, applr.
By ord. 43, any party to a defended action entered
to the Registrar for a iate or dates of hearing
of the ac{it;n' Such application shall
dJte or the first date' as may be required
be made not less than 30 days before the
shall contain the following:
to be reserved tbrthe hearing. The application
 L73

(a) an estimate of the duration of the proceedings;

(b) the date <lr dates required to be reserved for the hearing and a statement
whether such dates are suitable to all parties and
(c) a certificate to the effect that they have held the pre-trial conference or that it
is not applicable to the case.

Copies of the application to set down the action for trial shall be served on all
parties to the proceedings. The Registrar may assign the date or dates stated in
the application, if convenient to the court. This shall be notified to all parties and
if it turns out that it is inconvenient to any of the parties, such party shall within 4
days of the receipt of the Registrar's notice inform him in writing and all other
parties accordingly.

IO.IO T}IE TRIAL

The trial of a matrimonial cause is like any other civil trial and the High Court
Rules6aa apply mutetis mutandis. The action may be defended or undefended and
is usually conducted in open court. Exceptionally it may be held in camera.64s

10.10.1 Undefended case

If the case is undefbnded, the plaintiff may prove his case as far as the burden of
proof lies upon him. Judgment shall then be given accordingly in as far as he has
discharged such a burden. The plaintiff in an undefended case is normally taken
through the facts alleged by means of leading questions but when it comes to the
facts alleged to be evidence of an iretrievable breakdown of the marriage, the
plaintiff should be given a ltee rein to narrate his story.6a6
other wiilresses or other evidence in support of the plaintiffs case is
subsequently heard. At the end of these stages the judge gives his judgment. It is
hardly a certainty that the decision will necessarily go in favour of the plaintiff,
for the court may hold that he had failed to discharge the burden thrust upon him.
Even if he does, the court rnay rule that the marriage has not broken down
irretrievably as section/s (3) of the Matrimonial Causes Act lgT3legitimately
empowers it to do so. - "

6aa
See tbr example, Ord. 45 HCR.
no5
High Court Act [Cap. 04:02].
See s. 8
non
.ur"r of P"rry v. P)rry [19-52] p. 203 at p.209 and Moar v. Moor [195412
See the English
All E.R.458.
o*t
see Mombala v. Mombala [19761 B.L.R. 31 ar p. 32, pheto v. pheto
[1975] 1 ts.L.R. 59 at p.
 t74

10.10.2 Defended case

The procedure is generally the same as described above except that the plaintiff
anel his witnesses will be examined in chief by his attorney, if he is represented,
cross-examined by the defendant, and re-examined by the plaintifTlattorney
where necessary. At the end of the plaintiffs case, the defendant has two choices
open to him, namely, to apply for absolution from the instance or present a
de[ence.6oo

10.10.3 Absolution from the instance

In South Africa, the absolution from the instance has been described in the
following terms:

"The decree of absolution from the instance is dcrived fiom Dutch law, in which it was
apparantly used when a plaintiff failed on a point which did not go to the merit of the
case. In South African practice, however, it has been used 1'or two other pulposes. Ii is
the appropriate order when after all the evidence the Plaintiff has not discharged the
ordinary burden of proof. Its procedural advantage is that it enables the plaintitf to bring
another action on the same tacts, a privilegc which is denietl to the defendant if he tails in
an action in which the burden is upon him. But the question in either case is whether thc
ordinary trurden has heen discharged. Its other use is the exlension to civil actions of the
rules for withdmwing a case from the jury. If at the end of the Plaintiff s case there is not
sulficient evidence upon which a reasonable man could find for him, the defendant is
entitled to absolution. The same rule applies in cases in which the defendant begins but
fails to discharge the duty to adducc evidence, except that in such a case the proper order
woulcl bc juclgmcnt for thc plaintitf."6a')

If the absolution from the instance is not applied for or if applied for it has been
refused and the defendant has not closed his case, he may proceed to present his
defence.

62,Wagengv.lVageng, [19781 B.L.R. 17 at p. 19 and Khamqne v. Khsmane [1976i B.L'R. 22 at

p.25.
6'18
Ses Ord. 45 rr. 7(1) and 8 HCR.
t'ae Mujr v.
Hoflman & Zeffertt, South African Law of Evidence 4th. ed. 1988 pp. 507-508. See
January* [1990] B.L.R.388 Osupile v. Bank of Botswana [1997] B.L.R. 1356 an<l Botswana
Housirig Corp" v. First Nalionol Bonk oJ Botswana !19991 1\I.L.R.3L4
 175

10.f0.4 Defence

The defendant briefly outlines the facts to be proved and calls his witnesses, if
any. If there are a co-defendant and a party-cited, they will also give their
evidence. When the cases for both sides have been closed, the plaintiff may
address the court followed by the defendant. The plaintiffmay reply to any matter
arising from the defendant's address.6s0 After this the trial ends and the court
then delivers its judgment.

10.11 THE DIVORCE DECREE

The divorce decree is made in two stages, namely, the rule (decree) nj.r and the
decree absolute.6-s1 The rule nisi is made absolui. on application after 6 weeks.
The application to make the rule nisi absolute must be made on Form 2 of the
Matrimonial Causes Rules. The Registrar, after satisfying himself of the
following matters:

(a)
that no appeal against the decree and no application for re-hearing of the
cause or rescission ofthe decree are pending;
O) that the court of Appeal has made no order exrending the time of appeal
against the decree or for making an application for re-hearing of the causeor if
any such order has treen made, that the time so extended has expired;
{c) that no application for such an order as is mentioned in (b) above is
pending; or
(d) that the provisions of section 17 of the Act relating to financial provision
for the defendant within secrion 15 (1) (d), do not apply to the application or if
they do, that they have been complied with.

Ifthe application is made more than 12 months after the decree nlsl the Registrar
may require the applicant to file an affidavit explaining the delay and may make
such order as he thinks fit. Alternatively, he may refer the application to a judge.
The 6-week period between the rule nisi and the decree absoiute may be alilOgea
at the discretion of the court where manifest prejudice or hardship is shown by
the plaintiff. Hayfron-Benjamin C.J. articulated the reasoning behind the 6-weei
waiting period in Dube v. Dube.6sz He said:

65{)
5*" Ord. 45 r. 11 HCR.

I t..
'"'
sections 15 (3) and 16 of rhe Matrimonial
MC4l/lgtjO (S August 1980), unreporred.
Causes Ao and r. 17(1) MCR.
 176

"In the absence of children who may be adversely affected emotionally, financially, or
socially by the dissolution of their parents" marriage; the court should be slow to place
impediments in the way of the expeditious dissolution of a marriage, which has
cbviously and manifestly broken down inetricvably. The period between the ruie nisi
and the order making it absolute, should normally be such as lo enable ancillary matters
in respect of property and other financial arrangements of the parties to be settled. Of
course it is perrnissible for the court to entertain applications under s. 18 of the Act in
respect cf these matters even after the decree has been made absolute, it is however
desirable that these matters should tre sorted out before the maniage is dissolved. Where
as in this case none of these issues arisc, the court should by its orders, as far as is
consistent with due process, endeavour to prevent the infliction of avoidable hardship on
,16-5-1
tne panles.

In the instant case, the couft, coilsidering the peculiar circumstances of the case,
ordered that the rule nisi be made absolute after 1 week of the date of its
pronounc€ment.

The rule is of an inchoate, temporary and provisional character. It is ihe

nr,.si
decree absolute that finally brings to an end the marriage between the parties. It
constitutes a judgment r^ rem binding between the pariies and against the whole
world. The parties are still considered married during the period between the rule
nisl and the decree absolute and existing matrimonial rights may still be enforced
cluring the currency of the rule nisi.65o Ho*eoer, in Mokgethi v. Tsimane
(Formerly Mrs. Chumc;,65"t it was held that where a spouse dies during the
existence of a rule nisi but before such a rule is made absolute, the death of such a
spouse per se will not dissolve the marriage. The facts of lhe case were that on
the 12 of September 1994, the respondent's husband, Matebesi Chuma, since
deceased, was granted a decree nisi of divorce. Prior to the divorce action, the
parties have lived apart and there has been no consortium whatsoever for some
nine years. On the 7 of Octobet L994, which was within the six-week period of
the decree nisi, the husband died. On the 14 of November i994, the deceased's
attorneys, unaware of his death and presumably acting on his instructions given
before his death, applied and obtained a decree atrsolute for him. In the
meantime, the respondent had gone to the matrimonial home and asserted her
right ta half of the deceased's estate. The applicant, a relative of the deceased,
brought an application to interdict and restrain the respondent from meddling in
the deceased's estate. The crux of the application was whether the respondent

t't't
At pp. 4-6 of
the transcript.
t"t See the English cases of Sinclair v. Fett [1913] Ch. 155, Fender v. Mildmay [1937] 3 All
E.R. 402 and Wiggins v. Wiggins [1958] 2 All E.R. 555
t"'-
Misca No. 48/1995 (30 April 1998), unreported.
 177

was a widow of the deceased and this in turn depended on whether the
respondent's marriage with the deceased was dissolved by death and not by the
decree absolute.

The respondenl argued that the marriage was dissolved by death, the decree nisi
not having been made absolute at the time of her husband's death. The court
rejected this argument saying, inter alia, that the decree nisi has the effect of a
final order until rescinded within the six weeks provided and that death will not
per se affect it.656 Consequently, the respondent's attempt to share in the
deceased's estate as his widow was rejected. It is respectfully submitted that this
ruling is erroneous because during the currency of the decree risi the marriage
between the parties still subsisted and the death of the husband terminated the
marriage before the decree absolute. lt is the death of the husband and not the
decree absolute that terminated the marriage.657 The respondent should therefore
have been held to be the deceased's widow.658

IO,Iz RESCISSION OF THE RULE NISI

Section 16 of the Act enables a defendant to an action for divorce relying on

section 15 (1) (d) to apply to the court before the rule nrsi is made absolute, for it
to tre rescinded on the ground that he has been misled by the plaintiff about a
matter that he, the defendant, considered in giving his consent. If the court is
satisfied on the defendant's evidence, it may rescind the rule njsi. FurtherTnore,
the rule nisi may tre rescinded if either spouse applies to the court on the ground
thai since the order was made reconciliation has taken place between them.6se
Such an application may be made in chambers. ln Mokgethi v. Tsimane
(Itormerly Mrs. Chumal66o the court asserted that its power to rescind a decree
nlsl is derived from the Matrimonial Causes Act 1973 and rules made under it.
Consequently, for the court to rescind the said decree cause must be shown under
the Act or its rules why it should be rescinded.

t'St'
See pp. 4-5 of the transcript.
ntt
18 W, Bowen LI.
See the English case sf Stanhape v. Stanhape (1886) 11 P.D. 103 ar p.
n5*
See E.K. Quansah "Legal implication of death of a spouse in a divorce sinrxion in
Botswana" ( 1 999) 43 Journal of African Law 244 op. cit.
t"" r. 16(1).
See
"('\t {)p. cit.
 178

HELT} AT LOBATSE
MC No" 12312000

In the matter tretween: ,!i,

:,:

Flaintiff :it
GLADNESS GABORONE iis
And
PIUS GABORONB
Defendant **,i3
Co'defendant
CHARITY LEKOBA

}ECREBNTSI

&is day ol Deccmber 2llt)4

Bel'ore the Honourable Mr, Justice C. Mcriimo al klbatse
2nd

evidence and having read the

uPoN HEARING: Mr. Atltlrney Phero for the Plainliff and
docunents filed of record'

iT IS ORDEREDTHAT:
(NEE BOTLHOLE) the Plaintitl
The marriage solemnised between GLADNF.SS GABORONE gi
an<i thc l)efendant PIUS GABORONE at Cabor*ne
*n the 14'h day F'ebruary 2003 be
clissolvsd unless sufiicicnl causc is shown to this court within six weeks of the making of this
and absolute'
Orcler why such a decree should nol bo made final

BY THE COURT

REGISTRARAND MASTER.

IN THE HIGH COURT OF BOTSWANS

SEI?D AT LOBATSE MC No. 12312$X,

In the matter between:

GI,ADNESS GABORONE Plaintiff

And
Defendant
PIUS GABORONE
Co-det'endant
CHARITY LEKOBA
 t79

DECREEABSOLUTE

Referring to the Decree Nisi made in this cause on the 2nd December 21ff,4 whereby it was
decreed that the marriage solemnised on the 14th day of February 2003 at Gaborone between
GLADNESS GABORONE (NEE BOTLHOLE) the Plaintiff and PIUS GABORONE the
defendant dissolved unless sulTicient cause be shown to the court within six weeks of making
Lre
thereofwhy the said decree should not be made absolute, and no such cause having been shown,
it is hereby certified that the said decree was on the 20th clay of January 2005 made final and
absolute and that the marriage was thereby dissolved.

DATED AT LOBATSE THIS zONT DAY OF.IANUARY 2OO5

BY THE COURT

REGISTRAR & MASTER

 180

10.13 RECOGNITION OF FOREIGN DIVORCE DECRgES

The question sometimes arises whether a divorce decree granted by a foreign

661 If it is not recognised,
court should be recognised as valicl in Botswana.
then the parties, although regardod as divorced in the country where the
divorce was granted, remained married to each other according to Botswana
law.

There are no statutory provisions for the recognition of such decrees and as
such the common law rules apply. At common law, the sole test for the
recognition of a divorce decree is the domicile of both spouses at the time of
the grant of the decree.{'('2 It follows from this that if the couils of the domicile
of the parties have competence to grant the decree, then the Botswana c<lurts
should accord recognition to it. The reason for this rule was given by lnrd
Penzance in the Engistr case of Wilson v. Wilson663 as follows:

"lt is the strong inclination of my opinion that the only fair and satisfactory rule to
adopt on this rnatter of iurisdiction is to insist upon the partics in all cascs referring
their matrimonial differences to the courts of the couniry in which they are domiciled.
Ditlerent communities have ditt'erent views and laws respecting matrimoniirl
obligations, and a ditferent estimatc of causes which should justify divorce. It is both
iust and reasonable, therefore, that the differences of married peoplc shr:uld be
adjusted in accordance with thc laws of the community lo which they belong, and
tlealt with by the tribunals which alone can administer these laws. An honcst
adherence to these principlcs, moreover, will preclude the scandal which arises when
a man and woman are held to be man and wifc in one country and strangers in
. r rr/ilrJ
arl0tner.

Furthermore, the validity of a divorce decree obtained in the country of

domicile was exclusively governed by the law of that domicile and was not
affectbd by the fact that it was granted for some cause which will be
inadequate in the recognising country. Thus for instance, if a divr:rce decree is

t"" See E. K. Quansah "Recognition of foreign divorce decrees in Botswana" (1991) 23

Botswana Notes and Records 107, much of which is reproduced in this scction and J.
Kiggundu "Tlre recognition of foreign divorces in lJotswana" t1992) XXY Camparative and
International Law Jaurnal of Southern Africa 83.
t't']
Ses the Engtish case of Le Mesurier v. Le Mesurier [18951 A.C. -5 17 at p. 540 (PC). Sce
also the Struth Atiican case of Ex parte Stern 1976 (?) S.A.273 (C). As secn liom Chapler
Five, this rule is reflected in the internai jurisdiction of the High Court to hear matrimonial
causes.
nn"
1ls7?; L.R. z P. & D. 435 atp.442
"64 Approved by the Privy Council in Le Me surier v. Le Mesurier op. cit.
 181

granted to a person domiciled in Nigeria on the basis that the defendant, since
the marriage and within a period of six years immediately preceding the date of
the action, has been confined for a period or periods aggrbgating not less than
five years in a mental institution,nnt the courts in Botswana will be bound to
recognise such a decree even though that fact will be insufficient to grant a
divorce i n Botswana.6('('

Due to the rigidity of the domicile rule some inroads were made into it by the
courts. In Armitage v. Attorney Generafu' it was held that English courts will
recognise a divorce decree obtained in a country where the husband was not
domiciled if the courts of the country of his domicile would recognise the
validity of_the decree.u6n ln Travers v. Holley66o it was held that i roreign
divorce decree obtained in a foreign court should qualify for recognition if in
English court in equivalent circumstances would have had jurisdiction. Thus a
foreign divorce decree obtained by a wife on the basis of her continuous
residence in the foreign country for at least three years immediately preceding
the divorce proceedings should be recognised in Botswana in view of section 7
(1) (b) of the Matrimonial Causes Act 1971^,which gives a similar jurisdiction
to Botswana courts. ln lndyka v. Indyka670 the Housc of Lords held that a
foreign divorce decree would be recognised in England if there was a "real and
substantial connection" between the plaintiff or defendant anil the foreign
country where the divorce was obtainecl. While this approach was ,..n i,
generous, it has been criticised as extremely vague, making the status of the
parties _il England uncertain, and the decision of the court difficult to
predict.67l

t"'5
See section l6 (1) (g) (ii) of Nigeria's MatrimonialCauses Act 1970. Such a fact is taken
to be behaviour which a plaintitTcannot reasonably be expected to live with within section l-5
(2) (c) of the Act.
666
Although sections 25 {3) and 28 (2) af the Marrimonial Causes Act 1973 gives rhe
impression that divorce can be nbtaineti on the basis of the defendant's insanity. in vi"ew of the
provision of section 14, which makes irretrievable breakdown of the marriage ihe sole ground
ol divorce. this impression is clearly false.
"u' [1906] P. l3-5.
""n This rule u'as hclii in cuggenheimv. Rosenbaum (2) 1961
{4) s.A. 2l {w) rtr be parr ol
South African law.
n6'
1tu.s31 P. :46.
""'ll9691 1A.c.33.
''.t' S". J.H. Morris Crrnllict of Laws Stcvens, Londcn 1984 ar p. 195 note ?l and p.M. ir{orth
"Recognition of foreign decrees" Motlern Law Reviev,
 782

An opportunity to test the above rules in the Botswana Courts arose in

Mtheihwa v. Lebang.6l2 The applicant was granted a divorce demee by a
South African court in 1987 and she sought an order from the High Court, inter
alia:-
.oRecognising, within the Republic of Botswana, the Decree of Divorce and Courl
Order issued in the case of Ellen Ntombikaayise Lebang (born Mthethwa) and
Caolatlhs Phillip Lebang, Case No. B 4032186, by the Central Divorce Court,
Johannesburg, in the nepunrc of south Africa, on the 25th of June 1987.*

It was apparent from the supporting affidavit that the predominant reason for
the application was to seek the court's help to enforce ancillary reliefs granted
by the South African court and that the recognition being sought for the
divorce decree was a mere appendage. The enforcement of a judgment of the
kind being sought is provided for by the Judgment (International Enforcement)
Act 1981- Under that Act, it is only maintenance orders that can be enforced in
Botswana. In order for this to be done, the said judgment must be registered
under the provisions of the Act.673 It was obvious from the papers before the
court that ih" *tong procedure has been chosen for the enforcement of reliefs
and the court accordingly ruled that the South African order cannot be
entbrced in Botswana. The mistake by the applicant gave rise to a missed
opportunity for the articulation of rules for the recognition of foreign divorce
decrees in Botswana.

On the assumption that the fact in issue before the court was the recognition of
the South African divorce decree, there could have been grounds for according
recognition to it. Although the facts of the case did not reveal the domicile of'
the parties at the time of the proceedings in the Johannesburg court, it can be
fairly confidently be inferred that the parties were domiciled in South Africa at
the time. The primary basis for the jurisdiction of the South African courts in
divorce proceedings is the domicile of the parties in the area of iurisdiction of
the court at the time of the institution of the divorce action or the ordinary
residence in the coirrt's area of jurisdiction on the said date and have been
ordinarily resident in South Africa for a period of not less-than a year
immediately preceding the date of the institution of the action.bTa Under the
rule in Travers v. Holley the Botswana court could not have had jurisdiction to
grant the wife a decree in Botswana on her one-year's residense and hence

ntt
1tsool B.t-.R. 6 l -5.
nt3 -See II of the Act. See alsn Judgmeni (Reciprocal
particularly s. 15 and generally Part
Eniirrcement of Maintenance) Order 1966.
t't'See s. 2 (l) of the country's Divorce Act 1979 as amended by the Domicile Act 3 of i991.
 183

could not have recognised the South African decree granted on that basis.
However, if the husband had a domicile of choice in South Africa at the time
of the proceedings6tsthen on the basis of le Mesurier v. Le Mesurler, the court
could have recognised the decree and it would not have made any difference
that the Johannesburg courl actually assumed jurisdiction on the wife's one-
year residence in its area of jurisdiction. Alternatively, the court could have
used the "real and substantial connection" principle formulated in Indyka v.
Indyka in according recognition to the decree. On this principle, the siiuation
of the matrimonial home in South Africa may have provided the necessary
connection to that jurisdiction

The difficulties thrown up by Lebang's case should serve as a catalyst for

urgent reform in this area of the law. It has been suggested that a first step to
this end will be for Botswana to ratify the Hague Convention on the
Recognition of Divorces and Lrgal Separations 1970 and then to enact
appropriate legislation to implement the convention.6T6

t'7i
From the affidavit filed in the case it seemed that the husband had a Botswana domiciie of
origin.
""' Sec Kiggundu op. cir. ar p. 89.

INDEX
Abolition of the marital Power,32,
-1^)
Acting for defendant, 163
Acting for plaintiff, 149
Adoption, 138
Adultery, 72,159
Affidavit, 152
Alimony, 118
Amendment of summons, 162
Ancillary reliefs, l18
Aspects of parental Power, 137
Award of damages against a co-
defendant in adultery, 79
Bars to divorce,93
Behaviour, Sl
Change of domicile, 57
Community of ProPertY, 126
Consent to divorce, 96,167
Constructive desertion, 89
Conversion of customarY marriage,
44
Custody of children, 130
Custody of children born out of
wedlock, 147
Customary marriage and ProPertY
rights,48
Defendant's plea, 169
Desertion, 36
Dissolution of marciage, 52
Divorce,55
Domicile,56
Domicile of a married woman, 61
Drafting Declaration, 154
Effecl of nullity decree, 116
Entry of :appearan ce, 167
184
Equal management of the joint
estate,32
Exceptional hardshiP and
exceptional dePravitY, 64
Failure to enter an appeamnce,167
Financial provision for a wife, 118
Financial provision for children, L22
Foreign divorce decrees, 18{i
Ground for divorce, 7'l
Grounds for nullity of marriage, 105
Judicial separation, 101
kgal consequences of a marriage,
23
I"egal requiremenLs for the
conclusion of a valid marriage, 9
Maintenance of a child born out of
wedlock,144
Marital power,30
Marriage in communifY of ProPertY,
30
Marriage out of communitY of
j
property,23 f
Marriage under customarY law, 36
Marriage under the marriage, 8
t
Nature of marriage under customary
law,36
a
f
Nullity of marriage, 104
Offences relating to the marriage
ceremony,2l
Payment af bogadi,40 l
Presumption of death and
dissolution of marriage, 52
Pre-trial Conference, 171
Principles governing the award of
custody, 131
Proof of adultery, 73

Property rights on divorce, 124
Protection of spouses against each
other,33
Quantunr of" bogadi,4A
Reconciliation, 70
Registration of customary
rnarrtages,42
Registration of marriages, 2 I
Rescission of the adoption order,
l4?
185
Rescission of the rule nisi, 177
Restriction on divorce within two
years of marriage,63
Significance of" bogadi, 41
Solemnisation of the marriage, 19
Spouses' capacity to litigate, 33
Termination of desertian, 92
The divorce decree, 175
Void marriage, 106
Voidable marriage, 108
 +.:n+r+i=;:.:-i=.:1.-'-.,-='-,' .',...'-...-=".1:,=..t,.'.'.'
: ' '. ==..,. '-=. .;i .'-';i:--i;,=t'a' .-:==--ja=::a=ia

(.J