¹ Proclamation No. 36 of 1909, s.2.

² High Court of Botswana Act, 1967.

³ Subordinate Courts Proclamation, cap.5.

⁴ African Courts Proclamation, 1961.

⁵ No. 51 of 1969.

^{page 5 note 1} See also Customary Courts Proclamation, 1961, s.2 (as amended).

^{page 5 note 2} I.e., introduced by Reception Statute (see p. 4, n. 1, supra) plus subsequent legislation.

^{page 5 note 3} See, e.g. Allott, New Essays in African Law, 158.

^{page 5 note 4} Published as a supplement to the Gazette of November 8th, 1968.

^{page 5 note 5} Published as a supplement to the Gazette of December 31st, 1968.

^{page 5 note 6} Section 89(2). “The National Assembly shall not proceed upon any bill (including any amendment to a bill) that, in the opinion of the person presiding, would, if enacted, alter any of the provisions of this Constitution or affect—

(a) the designation, recognition, removal or powers of Chiefs, Sub-Chiefs, or Headmen;

(b) the organisation, powers or administration of African Courts;

(c) African customary law, or the ascertainment or recording of African customary law; or

(d) tribal organisation or tribal property;

unless—

(i) a copy of the bill has been referred to the House of Chiefs after it has been introduced in the National Assembly; and

(ii) a period of thirty days has elapsed from the date when the copy of the bill was referred to the House of Chiefs.”

^{page 5 note 7} Constitution, s.86(1).

^{page 5 note 8} House of Chiefs Official Report—10th Meeting, November 25th–26th, 1968, 22.

^{page 5 note 9} No. 57 of 1968.

^{page 6 note 1} To clauses 2, 6, 8 and 9.

^{page 6 note 2} House of Chiefs Official Report, 15.

^{page 6 note 3} Published as a supplement to the Gazette of November 8th, 1968, Bill No. 32.

^{page 6 note 4} Laws of Bechuanaland, 1959, cap.5.

^{page 6 note 5} See especially clauses 3 and 4 amending s.16 and introducing a new S.31A respectively.

^{page 6 note 6} No. 1 of 1968. Published as a supplement to the Gazette of July 12th, 1968 and subsequently becoming law as Act 57 of 1968.

^{page 6 note 7} Amending s.29 of the African Courts Proclamation, 1961.

^{page 7 note 1} 31A. “(1) A Subordinate Court at any time after the issue of summons commencing action, where both parties are tribesmen, either of its own motion or on the application of either party, where it is of the opinion that the matter in issue is justiciable under customary law may, if it considers it in the interests of justice so to do, order that the action be transferred to a customary court of appropriate jurisdiction established or recognized under the Customary Courts Proclamation, 1961.

(2) Before making an order under subsection (2) the Subordinate Court shall afford the parties an opportunity of making representations in the matter.

(3) For the purposes of this section “Tribesmen” and “customary law” shall have the meaning assigned them in the Customary Courts Proclamation, 1961.”

^{page 7 note 2} 11. “Consequent to the introduction of the African Courts (Amendment) Bill, 1968, amendment is required to section 16(1) of the Subordinate Courts Proclamation (Chapter 5) which provides for the reference of actions between Africans to the African Courts. Since the Subordinate Courts lack a customary law jurisdiction in matters of first instance, it is necessary to retain the power to refer actions justiciable under customary law to the customary courts, but, since a decision to refer a case amounts to a decision to deprive a person of his common law rights, if any, in the matter (just as a failure to refer may deprive a person of his customary law rights) it is considered that the question of the reference of a case to the customary courts should be fully canvassed in the Subordinate Court and should not be a matter which, as at present, may be left to the Clerk of the Court.”

^{page 7 note 3} House of Chiefs Official Report, 18.

^{page 7 note 4} No. 57 of 1968.

^{page 7 note 5} No. 32 of 1968.

^{page 7 note 6} House of Chiefs Official Report, 22.

^{page 7 note 7} No. 23 of 1969. Published as a supplement to the Gazette of July 11th, 1969. No. 23 of 1969.

^{page 7 note 8} It is almost identical to the extract from the earlier Memorandum, quoted at n. 2, supra.

^{page 7 note 9} Section 31A of the Subordinate Courts Proclamation now reads:

“Transfer of Cases to Customary Court

31A. (1) Where at any time after the commencement of any proceedings, a Subordinate Court is of the opinion—

(a) that, by virtue of the provisions of section 4 of the Customary Law (Application and Ascertainment) Act, 1969, or any other law, customary law is applicable to the principal matter in issue: and

(b) that it is not contrary to the interests of justice to do so; it shall order that the case be transferred to a customary court of competent jurisdiction.

(2) Before making an order under subsction (1) the Subordinate Court shall afford the parties an opportunity of making representations in the matter.

(3) An order under subsection (1) shall have the effect of suspending all proceedings in the matter before the Subordiate Court making the order, and any party to the proceedings, may thereupon, subject to the provisions of the Customary Courts Proclamation, 1961, commence proceedings de novo in any customary court of competent jurisdiction.”

^{page 8 note 1} Although, of course, the original transfer provision, the proviso to s.16 of the Subordinate Courts Proclamation, was then in force.

^{page 9 note 1} “8.(1) Subject to the provisions of section ten, and of subsection (2) of this section, a customary court shall have and may exercise civil jurisdiction over causes and matters in which—

(a) the matter is justiciable under any law administered by the Court under section 12, and

(i) all the parties are tribesmen; or

(ii)the defendant consents in writing to the jurisdiction of the court.

(2) Notwithstanding the provisions of subsection (1), a Customary Court shall have jurisdiction to hear and determine suits for the recovery of liquid civil debts due to the State or any Town or District Council in which the defendant is a tribesman or consents in writing to the jurisdiction of the Court.”

^{page 9 note 2} Section 29(3) (a).

^{page 10 note 1} Section 4 (a).

^{page 10 note 2} Section 4 (b).

^{page 10 note 3} Section 4 (c).

^{page 10 note 4} Cf., Schreiner, J. A., in Ex Parte Minister of Native Affairs in Re Yako v. Beyi, 1948 (1) S.A. 388 (AD), at 400.

^{page 11 note 1} Cf., Mokorosi v. Makorosi, 1961–62 H.C.T.L.R. 1.

^{page 11 note 2} I.e., presumably, in cases involving as parties at least one tribesman and at least one non-tribesman.

^{page 11 note 3} Section 5 (a).

^{page 11 note 4} Section 5 (b).

^{page 11 note 5} I.e., presumably, no “question arises” for the purposes of s.10. See below at p. 15.

^{page 11 note 6} See, e.g., Fortune v. Fortune, 1953 (3) S.A. 348.

^{page 11 note 7} See supra.

^{page 11 note 8} See also Allott, op. cit., 166.

^{page 12 note 1} 1963–1966 H.C.T.L.R. 70.

^{page 12 note 2} Cap. 87 of the Laws (1959 ed.).

^{page 12 note 3} Cap. 83 (as amended).

^{page 12 note 4} I.e., the estate of a “tribesman” who is also an “African”, although prima facie to be administered in accordance with customary law, may be brought within the ambit of the Administration of Estates Proclamation by virtue of s.3(2) of that Proclamation.

^{page 12 note 5} Hansard, March 25th, 1969.

^{page 12 note 6} See infra.

^{page 13 note 1} See supra, p. 10.

^{page 13 note 2} In Bill 57 of 1968 this provision was confined to the spouse of the deceased.

^{page 13 note 3} 1960(2) S.A. 467.

^{page 13 note 4} This position has since been reversed by legislation in South Africa.

^{page 13 note 5} House of Chiefs Official Report, 16.

^{page 13 note 6} Bill 34 of 1968.

^{page 14 note 1} Despite, e.g., the warning of Lansdown, J. in Bereng Griffith v. ‘Mantsebo Seeiso Griffith, 1926–53 H.C.T.L.R. 50, at p. 58 that “great caution, however, is necessary in seeking any guidance from these authorities”.

^{page 14 note 2} Samotsoko v. Palane, 1958 H.C.T.L.R. 75.

^{page 14 note 3} See also Allott, op. cit. 284.

^{page 14 note 4} Act 57 of 1968.

^{page 14 note 5} Proclamation 19 of 1961.

^{page 14 note 6} Section 10(1) (a).

^{page 14 note 7} Section 10(1) (b).

^{page 15 note 1} Section 10 (1) (c). N.B. also that in the original bill (Bill 34 of 1968) the clause equivalent to s.10 was much more comprehensive and included, inter alia, provision for the application of a combination of any two or more customary laws.

^{page 15 note 2} A similar phrase has long existed in the Subordinate Courts Proclamation as a jurisdictional limitation.

^{page 15 note 3} See Allott, New Essays in African Law, 44.

^{page 15 note 4} See supra at p. 10.

^{page 16 note 1} (1916) P.C. ’74–’28,43.

^{page 16 note 2} For a full discussion see Allott, op. cit. 259.

^{page 16 note 3} No. 34 of 1968.

^{page 16 note 4} Such influence was acknowledged by the Minister of State: see, Official Report of House of Chiefs, 16.

^{page 16 note 5} N.L.C.D. 84.

^{page 16 note 6} Supplement to the Gazette of November 8th, 1968.

^{page 17 note 1} N.B. also that by virtue of s.2 judicial notice may be taken of customary law not only in Botswana but also from other parts of Africa.

^{page 17 note 2} Despite the virtually identical wording of the memorandum to the bill referred to above.

^{page 17 note 3} Section 11, Proviso (iii).

^{page 17 note 4} For which provision is made in the High Court Act, s.12 and the Subordinate Courts Proclamation, s. 19.

^{page 18 note 1} Dhalimini v. R. (1943) 1 All E.R. 463.

^{page 18 note 2} See supra at p. 16.

^{page 18 note 3} That this is the intention of the section is confirmed in the Official Report of the House of Chiefs, 16.

^{page 18 note 4} See, e.g., the three Restatements of the Kgatla law of Succession to Property, Domestic Relations, and Land and National Resources (all printed by the Government Printer, Gaborone).