² Civ. T. 19/71 and Civ. A. 1/1971 (unreported); a case reminiscent in many respects of Re Maangi, [1968] E.A. 637.

^{page 52 note 1} This and other references to the “Constitution of Swaziland” are references to the Independence Constitution contained in the Schedule to the Swaziland Independence Order of 1968 (SI No. 1377). This Constitution was “repealed” on 12th April, 1973, by Proclamation of King Sobhuza II, such “repeal” itself being the source of much legal speculation in Swaziland but, for present purposes, “another story”. The demise of the 1968 Constitution does mean, however, that the particular legal situation analysed in this article cannot recur in Swaziland. For historical and comparative purposes, it is felt that its value may still be preserved.

^{page 55 note 1} The decision in the Ross-Spencer case has also been the subject of a critical article by Chief Justice Aguda of Botswana entitled “Discriminatory statutory provisions and fundamental rights provisions of the Constitutions of Botswana, Lesotho and Swaziland”, (1972 S.A.L.J. 299).

The learned Chief Justice's argument (if I may presume to select brief quotations from it) was that

(a) “it must be held to run counter to the tenets of a democratic society anywhere in this part of the century to permit discriminatory treatment based upon factors completely beyond the control of the citizen, for example the accident of race or colour” (at p. 305); and that

(b) “the situation where a group of people are forced without an option to take a dispute to a particular court merely because of their race stands suspect of serious if not invidious discrimination hardly pardonable in a democratic society… In the context of an independent democratic African country, to exclude the majority of the citizens of the State from the jurisdiction of the High Court because they are Africans appears to the present writer as an unwarranted vestige of colonialism” (at pp. 305–306).

He concluded, therefore, that, in sanctioning racial discrimination in respect of access to particular courts, the Court of Appeal's decision was wrong.

There is a forceful persuasiveness apparent in such an argument which I should not wish to contradict but two comments may perhaps be added:

(a) It seems a little ironic that had the same legislation as existed in Swaziland existed in Botswana and had it been challenged on the same grounds (i.e. as an infringement of Botswana's Constitution, s. 15) then the challenge would almost certainly have been killed outright by s. 15 (4) (c) of the Constitution (which has no equivalent in Swaziland)—

“15. (4) Subsection (1) of this section shall not apply to any law so far as that law makes provision…

(c) with respect to adoption, marriage, divorce, burial, devolution of property on death [author's italics] or other matters of personal law.”

If, as is submitted, such a provision would have “saved” the offending parts of Swaziland's legislation, perhaps the “tenets of a democratic society” are also disregarded in Botswana and by conscious “constitutional” act at that!

(b) Another criticism is perhaps more general and goes a little deeper. Whilst denying that sending persons of different racial groups to different courts is tolerable, the learned Chief Justice claimed nevertheless that “it must be permissible to decree that certain disputes are governed by certain laws, for example, that disputes between natives of a particular country are to be settled under laws generally applicable between them, whilst disputes between a native and a non-native or between two non-natives are settled under different laws” (at p. 307).

In the present writer's view, there is not, in fact, a valid distinction to be drawn between discrimination as to choice of courts and discrimination as to the law applicable in the courts. An emotive call for access to the High Court may surely be negatived by the application of discriminatory laws therein. The problem of the possibility of any form of discrimination under a “dual” legal system is surely what is at issue. The challenge posed by Ross-Spencer, and not met by this sort of distinction between “courts” and the “law”, is whether a discriminatory “dual” system is tolerable at all and, if so, according to what principle. The judges of the Court of Appeal suggested the solution discussed above, i.e. based on discrimination between races on account of social distinctions between them. The Constitution of Botswana appears simply to acknowledge the discrimination and gives it blanket legality. What other alternatives are there?