CHAPTER 1

The Botswana Legal System

The Botswana Legal System

Introduction
Brief History of the Law
Sources of the Law
The courts in the Republic
Classification of Law
What is a legal system?

• A legal system is the sum total of the law of a given

society, and includes the way(s) it is made, how it is
enforced and the institutions involved in its making
and enforcement.

Botswana has a dual (twin) legal system, comprising

customary law and what is usually termed received
law (or common law). The legal system is regarded as
dual because they operate side by side, or rather, they
co-exist.
Sources of Law

The Constitution
Legislation
Customary law
Common law
Judicial precedent
 Law Reports
Legal writings
The Constitution
• The Constitution of the Republic of Botswana
provides for a republican form of government with
three organs of state namely legislature, the executive
and the judiciary. There is no explicit provision
making the constitution the supreme law of the land
in Botswana. This is assumed. See case of ATTORNEY
GENERAL V. UNITY DOW
• The Constitution is strictly followed in application of
any law. The courts’ independence is enshrined in the
Constitution .The Setswana phrase, "ga re lebe motho,
re leba molato" which means that 'the law is applied
without taking into account the status of the person
being tried' is a guiding principle in application of law.
Legislation
• Legislation refers to laws that emanate from
passed parliament or bodies to which
parliament has delegated powers to legislate.
• Laws passed by parliament are called Acts
and orders, proclamations, by-laws,
regulations or rules refer to those laws passed
by a subordinate/subsidiary body/authority.
Therefore legislation comprises of statutes
and subsidiary legislation. Botswana’s
statutes are enacted by the National Assembly
as given in terms s86 of the Constitution.
Legislation
Legislation validity depends on compliance with
the Constitution.
In addition subordinate legislation is subject to
the ultra vires doctrine. When a bill passes
through the National assembly and assented to by
the State President, it becomes the Act of
Parliament. It comes into effect when published in
the Government Gazette or at a later stage by a
notice/proclamation that it will come into effect at
a particular date.
Customary Law
• Customary Law in Botswana is not only a source of law but
also a form of law.
• Customary Law as defined in the Customary Law Act
1969(2002 amendments) states that ‘Customary law,’ means,
in relation to any particular tribe or tribal community , the
customary law of that tribe or community so far as it is not
incompatible with the provisions of any written law or
contrary to morality ,humanity or natural justice.
• Customary Law does not exist of written rules, but develops
from the habits of the community and is carried from
generation to generation.
•
Customary Law
• When the requirements of a custom have been
proved to the satisfaction of a court, that custom
becomes a rule of law by precedent. In Van
Breda v Jacobs it was held that for a custom to
be valid it must fulfill the following
requirements:
• It must be reasonable

• It must have existed for a long time

• It must be generally recognized and observed

by the community
• Its contents must be definite and clear
•
Common Law
• The expression common law could be literally used
to refer to the national law applicable to all
inhabitants of Botswana. In the overview of the
historical origins of the Botswana Legal system
clearly shows that what Botswana received during
the colonial period under the 1891 proclamation
was neither pure Roman Dutch law nor pure
English law but a mixture of both laws as
developed further in South African courts.
Judicial Precedent
• Judicial Precedent refers to the way in which the law is made and
amended through the decisions of judges. It is based on the principle of
‘’stare decisis’’, which literally translates to ‘’the decision stands’’. The
general rule is that all courts are bound to follow decisions made by
courts higher than themselves in the hierarchy and appellate courts are
usually bound by their own previous decisions.
• The doctrine refers to the fact that within the hierarchical structure of
the courts, a decision of a higher court will be binding on a court lower
than it in that hierarchy. In general terms this means that when judges
try cases they will check to see if a similar situation has come before a
court previously. If the precedent was set by a court of equal or higher
status to the court deciding the new case, then the judge in the present
case should follow the rule of law established in the earlier case. Where
the precedent is from a lower court in the hierarchy, the judge in the new
case may not follow but will certainly consider it.
•
Judicial Precedent
• The doctrine refers to the fact that within the
hierarchical structure of the courts, a decision of a
higher court will be binding on a court lower than it
in that hierarchy.
• In general terms this means that when judges try
cases they will check to see if a similar situation has
come before a court previously. If the precedent was
set by a court of equal or higher status to the court
deciding the new case, then the judge in the present
case should follow the rule of law established in the
earlier case. Where the precedent is from a lower
court in the hierarchy, the judge in the new case may
not follow but will certainly consider it.
Legal Writings
• Legal writings as a source of law differ primarily from
statutory law in that they contain merely the opinions
of the different writers as to what the state of law is.
Legal writings are a secondary source of law and are
regularly cited and discussed in the judgements of
superior courts of Botswana. The courts cite and rely
on the arguments and views of the law expresses in
modern texts based on the intrinsic merits of the
arguments or views expressed and not on the authority
of the author.
Law Reports
Law reports are the judicial decisions that are
recorded in the Botswana Law Reports. This are a
selection of judgments from the superiors courts that
are used as a basis for judicial precedent.
Botswana Courts
• Courts are necessary institutions in any democratic society. They provide an
impartial forum in which disputes between individual citizens or institutions, and
disputes between citizens and the state can be peacefully resolved.
• They also play the important role of declaring the rights of the citizens in
providing relief and remedies for the violation of human rights.
• The hierarchical structure of courts in Botswana is broadly made up of
• (i) The Court of Appeal
• (ii) The High Court and Industrial Court (of the same status but the industrial
court is exclusively for labour issues)
• (iii) Magistrates Courts (note that the different classes/grades of magistrates do
not form a hierarchy for purposes of judicial precedent)
• (iv) Customary Courts. The above structure illustrates the dual systems of laws
operating in the country in that the first three courts are concerned primarily with
administering the common law and statues enacted by the legislature while the
Customary Courts deal essentially with Customary Law in Botswana.
• The Court of Appeal and the High Court constitute the superior courts and the
Magistrates and Customary Courts make up the inferior (subordinate) court.
• The current hierarchy of Botswana Courts is as follows:
Hierarchy of Botswana Courts
Court of Appeal

High Court

Magistrates Court

Customary Court of Appeal

Customary Court
Specialized Courts

Industrial court
Small Claims court
Court martial
Juvenile Court
Land Tribunal
Traffic Court
Maintenance Courts
Classification of Law
• Law can generally be classified into various categories,
such as private law versus public law, national and
international law, civil and criminal law, substantive
and adjectival law. These classifications are often not
concrete as law problems may cut across several
different subjects’ areas. Factual situations that arise
in real life often do not fit neatly and exactly into only
a single one of these categories of law.
• In fact, they are far more likely to involve two or more
different topics of law.
• The two main divisions of law are between public law
and private law
 THE LAW

International National law

law

Substantive law Adjective law

Law of criminal Law of civil Law of

procedure procedure evidence

Public law Private law

Constitutional Administrative Criminal

law law law

Law of patrimony Law of persons Family law Law of

personality

Property Law of Law of Law of

succession obligation intellectual
law property

Law of contract Law of delict

Commercial law
National and International Law
• National laws refer to that part of law that operates within the
boundaries of each sovereign state and is interpreted and enforced by its
courts. International law is the body of rules and principles that are
binding upon and regulate the relations between sovereign states. It is
usually subdivided into two:
• Public international law refers to laws that regulate the relationship
between independent countries or States. They are mainly based upon
treaties or agreements, and upon practices and usages that have
developed. These are enforced, not by the internal courts of a country,
but by the International Court of Justice of the Hague, in the
Netherlands, or by arbitration
• Private international law is the law that regulates the relationships
between people or bodies of different countries. It is a separate category
of law because in effect it modifies the application of the normal law,
(e.g. of contracts, delict, or family law), to take account of the fact that
one of the parties is from a different legal system. It is concerned with
resolving differences between two or more different legal systems.
Substantive and Adjective Law
• Substantive or Material law deals with those areas of
law which determine which actual rights and duties of
individuals.
• These legal rules define acceptable and unacceptable
behaviour by the citizens of Botswana.
• Adjective or Procedural law deals with and lays down
the ways and means by which substantive law can be
enforced.
• Substantive law is further divided into public and
private law as shown below.
Civil law and Criminal law
Civil law relates to the law that governs the relationship
between civilians with respect to their rights and
enjoyment of the same, and the objects of their rights.
Criminal law on the other hand relates to the relationship
between the citizen and the State with respect to criminal
conduct.
 This is why it is important for you to note that all crimes
are committed against the State even though they may
affect individuals. The State is the one with the onus to
prove all crimes. The State prosecutes all crimes. Of course
because of the new developments over time, there are
private prosecutions of crime, but that is quite rare. All
crimes are prosecuted by the State.
Public law and Private law.
Traditionally, the main division in law is the one between
public law and private law.
Public law is concerned with the distribution and exercise
of power by the state and the legal relations between the
state and the individual.
Private law, on the other hand, is concerned with the legal
relationships between individuals.
Cont..
The law of persons determines
 who are legal subjects
how one becomes, or ceases to be, a legal subject
the various classes of legal subjects
 the legal position (status) of each of these various
classes of legal subjects
Family law : It comprises the following two
subdivisions:
 the law of husband and wife
the law of parent and child
The law of personality : Is concerned with the
protection of the physical and psychological integrity
of legal subjects.
 Patrimonial law
It deals with the relations between persons as regards
their patrimony.
 A persons patrimony consists of all his or her rights
and duties which may be valued in money. It is
therefore the sum of his assets and liabilities.
The law of succession: It deals with the rights of
legal subjects to the property of a deceased person.
The law of intellectual property: Copyright law,
patent law, trade mark law and design law form part of
intellectual property law.
Cont..
• A further category apart from those of Public and
Private law is that of commercial or mercantile law.
• Commercial law usually refers to those legal rules
which although of a divergent origin and nature,
nevertheless have in common that they arose from the
customs of merchants or relate to business activity.
• The following may be classified under commercial law:
contracts of sale ,lease, negotiable
instruments,insolvency,companies,partnerships,close
corporations, agency, insurance, labour
law ,intellectual property law e.t.c.
Cont..
The law of obligations
An obligation between legal subjects may come about
through:
 contract
 delict
various other causes, for example unjustified
enrichment
Property Law: Deals with the rules about ownership,
use and transfer of property .These rules differ
according to the particular type of property.