In terms of Botswana law, the inherited assets of people living under a customary law system pass in accordance with the customary rules of a particular community. The customary law applicable to the facts of the case was the Ngwaketse rule of inheritance, which is based on the principle of ultimogeniture. 56 An overview of the proceedings in the mayor's court is given in the Ramantele case (separate trial) para 5A.
Customary court of appeal: Back to basics
High Court of Botswana: A constitutional approach
As a result, the court overturned the judgment of the ordinary court of appeals and issued the following order:74. The Court of Appeal75 was very critical of the fact that the High Court did not determine what legal remedy the defendants have. Given the pervasive importance of the South African constitution in the development of the common law, it is surprising that.
The highest law of the land; that it is a written, organic instrument intended to serve not only the present generation, but several generations not yet born. It is difficult to imagine how this could be done without a constitutional inquiry into the constitutionality of common law. 84 This can be deduced from section 86 of the Botswana constitution, which confers legislative powers on the Botswana parliament, subject to the constitution.
Another aspect, probably the more critical one, is the constitutional gymnastics performed by the Court to circumvent the effects of section 15 of the Botswana Constitution. Among other things, the appellant argued that the Botswana Constitution must be interpreted as a whole, which led to the application of the exclusion clause in section 15 in cases of discrimination based on a person's 'gender'. The Constitution is the supreme law of the land and it is intended to serve not only this generation, but also generations yet unborn.
It seems to me that a falsification of the Constitution must be prevented if this is possible without doing extreme violence to the constitutional language.
Botswana Court of Appeal: Back to the drawing board
Meaning, status and ascertainment of customary law in Botswana
The requirement that the customs on which customary law is based must have longevity certainly presents challenges, as it fails to recognize the fact that societies are on the move, and so are their customs. The indefinable nature of customary law seeps into other important issues, such as its status and determination. 113 Art 2 of the Customary Law Act defines a tribe as 'a division of a tribe' (a definition that makes no sense at all) and a tribal community as 'any community that lives outside a tribal area, but in a tribe is not organized. wise'.
In his separate judgment, Kirby JP affirmed that common law has two salient features, namely its common law. The subsidiary position of customary law is also apparent from the statement of Lesetedi AJ in the Ramantele case (chief judgment), which linked the existence of customary law to the fulfillment of certain conditions:126. Common law must be applied in accordance with established principles of morality, humanity or natural justice, with the aim of achieving justice and equality between the disputants.
It therefore appears that the test for the existence of a customary law rule in Botswana is different from the test in South African law. As already explained, Section 11 of the Botswana Customary Law Act provides guidelines for the determination of customary law, but this provision only becomes operational after a court has doubts about the existence of a customary law rule, despite evidence presented by the parties. . 134 This provision provides that '[i]f the system of common law cannot be determined in accordance with subsection (1) or if the customary law cannot be determined, the court shall decide the case in accordance with the principles of justice, fairness and good conscience'.
Fombad (n 1 above) 90 finds it surprising that the rescission clause was retained in Botswana law after independence, because of its clear bias against customary law. iii) any such oral opinion must be given to the court in the same manner as oral evidence.
Application of the Constitution to customary law
In other words, section 3 is a general provision that guarantees everyone the rights and freedoms of Chapter II, but subject to general limitations based on "respect for the rights and freedoms of others and the public interest for all and everyone." On the other hand, Article 15 is a special clause that explicitly defines the right to equality, including its specific limitations. Thus, the deviations from Articles 15(4)(c) and (d) must also be checked against the constitution to determine whether they148.
In its interpretation of Botswana's constitution in general, and the Bill of Rights in particular, the court must take a generous and targeted approach in accordance with Botswana's liberal democratic values and in accordance with international guidelines.149 On the other hand, exceptions apply. such as those contained in section 15, subsection 4, must be interpreted strictly and narrowly, taking into account the exceptions in § 3.150 of the Basic Law. Kirby JP, who fully agreed with the reasoning and ruling of Lesetedi JA, also gave his view on what the proper course of action should be when a court is faced with a challenge to the constitutionality of a rule of common law.151 As already explained . in the constitution for constitutional aid.153 There was no need to measure the customary rule of ultimacy against the constitution because the existing legal framework set out in the Customary Law Act154 was sufficient to determine whether the rule was 'contrary to morals, humanity or natural justice'.155 The customary rule excluded women from inheritance solely on the ground of sex, and there was no doubt in Kirby JP that it was therefore inconsistent with humanity, morality or natural justice.156 However, there cannot less be circumstances justifying the discrimination, such as 'family unity, security of inheritance, support for the widow and the provision of a final home.
Role of the judiciary in the development of customary law The South African judiciary's approach to legal pluralism issues 159 is
His observations are in accordance with the position of many South African judges that the South African Constitution is supreme law to which all other laws, even customary law, must yield.166. It is somewhat disappointing that the Court of Appeal of Botswana did not share Dingake J's sentiments about his role in developing customary law in line with liberal constitutional values. According to Lesetedi JA, the primary role of a judge is to resolve disputes and to interpret the law to be applied to disputes before the court.
Lesetedi JA held that, while the judiciary is known for upholding constitutional values in cases where it was necessary, "there was no need for a rebirth in this case."167. In defense of Lesetedi JA it must be acknowledged that he has nuanced his contention that a court should not readily consider the constitutionality of a customary rule qualifying it to do so only if there is sufficient evidence as to the existence and the content of a customary law. such a rule, its application and its rationale.168 Apparently this was not the position in the present case and therefore the Constitution could not be applied. It is noteworthy that the South African Constitution provides that 'laws and conduct contrary thereto shall be invalid',169 elevating it to supreme law over all laws and conduct, which might resolve the issue that there was no evidence that the rule indeed existed in the Ramantele case.
3 Conclusion
The contribution of the judiciary to creating a transformed society where the rights and freedoms of individuals, especially women and other vulnerable groups,172 are protected and promoted, cannot be underestimated. Judges make new law when they make a ruling with influential value, especially where the rule of stare decisis is one of the prominent features of the legal system. A ruling such as the one from the Court of Appeal of Botswana had the potential to advance the development of human rights, particularly the rights to equality of women who in many traditional communities are excluded from succession, as illustrated by this case.
Lesededi JA's final decision to partially uphold Kgosi Lotlaamorenga II's order in the High Customary Court that the homestead belonged to "all the children born to Silabo and Thwesane" to use as they wished whenever they had an event together certainly left something to be desired. of unanswered questions. If they (presumably Edith and her surviving sisters) are co-owners of the homestead, who is next in line should one or all of them die. In addition, authority was given to the elders and uncles and, failing that, to a person appointed by Kgosi Malope II to decide the fate of the homestead if the four remaining sisters could not agree on who should take care of the property, it leaves a feeling of anxiety in a person.
In the modern age of equal rights and equal worth, the fate of women is once again left in the hands of men. Surely it could not be what Dingake J described in Mmusi173 as the product of "Judges of this Court who look upon the Constitution as a ``mirror reflecting the national soul''".
