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Effects of Matrimonial Causes Legislation in Botswana

Published online by Cambridge University Press:  28 July 2009

C. M. G. Himsworth
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Extract

As in other former British territories in Africa, the means of introducing a system of common-law rules into Botswana (then the Bechuanaland Protectorate) was the so-called “reception statute”. This was the device whereby at a particular date the laws of one country (usually England) were “received” wholesale by the colonial territory subject to various conditions contained in the reception statute itself. For Botswana, as for the other former High Commission Territories, Lesotho and Swaziland, it was not the English common law that was introduced but rather the law prevailing in the several parts of what is now South Africa. The General Law Proclamation of 19092 had the effect of introducing the Roman-Dutch law from the Colony of the Cape of Good Hope. Cape statutes promulgated after the date of reception were expressly declared not to be applicable in the territory, whilst amendment of the received law by local statutes was, of course, possible.

Type
Research Article
Information
Journal of African Law , Volume 18 , Issue 2 , Autumn 1974 , pp. 173 - 179
Copyright
Copyright © School of Oriental and African Studies 1974

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References

2 Proclamation No. 36 of 1909.

3 Proclamation No. 1 of 1917. The Proclamation makes provision for the formalities of the solemnisation and registration of Marriages.

4 See eg. Hahlo, The South African law of husband and wife, 3rd ed., p. 11.

5 Divorce Laws Amendment Act, No. 32 of 1935.

6 Matrimonial Affairs Act, No. 37 of 1953.

7 Act No. 69 of 1970.

8 Act No. 66 of 1970.

9 Act No. 1 of 1973.

page 174 note 1 In respect of this particular Act one could refer inter alia to:

(i) an “Arrangement of Sections” containing a non-existent section and two “s. 16’s;”

(ii) a Long Title which refers to the amendment of the grounds for Judicial Separation which are not, in fact, (perhaps inadvertently) dealt with by the Act;

(iii) a gap where a date of commencement appears to have been intended; and

(iv) a Short Title which provides that the Act (previously entided No. 1 of 1973) should be cited as the “Matrimonial Causes Act, 1972”.

page 174 note 2 It is, for instance, a pity from die point of view of consistency that s. 15 of the Act alters equivalent terms in the English Divorce Reform Act to suit the terminology of Botswana by referring to an “action” rather than a “petition” for divorce and thus to the “plaintiff” and “defendant” rather than “petitioner” and “respondent”. Thereafter, however, unfortunate references to “petitions” (s. 17), and “respondents” (ss. 17 and 21) creep in. The random use in the Act of “decree”, “rule” and “declaration” is similarly unhappy.

page 174 note 3 Published as a Supplement to the Government Gazette of June 2nd, 1972.

page 174 note 4 The Group appointed by the Archbishop of Canterbury which produced Putting Asunder, 1966.

page 175 note 1 Voet 24.2.5.

page 175 note 2 S. 2 (1) (e) of the English Act originally appeared as s. 16 (1) (e) of the Botswana Bill but was subsequently removed. Its ghost, however, remains and a reference to it inadvertently lingers on in s. 17 (1) (a) of the Act.

page 176 note 1 Hahlo, op. cit., p. 424.

page 176 note 2 Murison v. Murison, 1930 A.D. 157.

page 176 note 3 See, e.g., s. 2 (b) of the South African Divorce Laws Amendment Act of 1935 which specifically excluded the right to an order for forfeiture of benefits in the case of a decree on the grounds of insanity introduced by that Act.

page 177 note 1 The need for such an adjustment was recognised in the English law by the amendment contained in Schedule 1 (5) to the Divorce Reform Act, 1969.

page 177 note 2 Voet 24.3.8.

page 177 note 3 See, e.g., Glazer v. Glazer 1963 (4) S.A. 694.

page 177 note 4 Cf. s. 10 (1) of the South African Matrimonial Affairs Act, 1953, which makes statutory provision for orders of maintenance. Because it relates to a system retaining the concept of the matrimonial offence it distinguishes between the “guilty” spouse and the “innocent” spouse but makes no distinction between husband and wife.

page 177 note 5 At least, not permanently: Walters v. Walters 1949 (3) S.A. 906.

page 178 note 1 See, e.g., Grobler v. Union Government 1923 T.P.D. 429.

page 178 note 2 What I have described as a loss of legislative nerve may also account for a curious provision in s. 22 (6).

This subsection reproduces s. 11 of the English Matrimonial Causes Act, 1965, in ensuring that children of a voidable marriage declared to be a nullity will be regarded as legitimate if they would have been so regarded had the marriage instead been dissolved. Oddly, however, the Botswana Act then proceeds to exclude from the benefit of this provision children of marriages voidable on the grounds that “the defendant was at the time of the marriage pregnant by some person other than the plaintiff”. A male horror of having to accept a child which is not his own seems to be revealed. Longer reflection would have demonstrated, however, that such fears are misplaced. No marriage, whether voidable or wholly valid, would have legitimated the child of someone other than the husband.

page 178 note 3 See p. 173, n. 3, above.

page 179 note 1 See the Perpetual Edict, 1540; the Political Ordinance, 1580; Voet 23.2.11.; Willenburg v. Willenburg (1909) 3 Buch A. C. 409; cf. Van der Westhuizen v. Engelbrecht 1942 O.P.D. 191. The position is discussed by Hahlo, op. cit., at pp. 85 et seq.