¹ The opportunity for me to make a survey of the Tswana customary courts arose in the months between November 1968 and March 1970, while I was acting as Customary Law Adviser to the Botswana Government. The appointment was arranged under the United Kingdom Government Special Commonwealth African Assistance Plan, and I was given special leave of absence from the London School of Economics to undertake the work. Further work on the survey was done during a much shorter trip to Botswana in the Summer of 1971. I am grateful to Professor I. Schapera and Dr. Adam Kuper for helpful comments on an earlier draft of this article.

² “The work of tribal courts in the Bechuanaland Protectorate”, (1943) 2 African Studies 27; hereafter identified in the footnotes as Schapera, 1943.

^{page 104 note 1} “The work of customary courts; some facts and speculations”, (1969) 28 African Studies 37; hereafter identified in the footnotes as Kuper, 1969.

^{page 104 note 2} Details of the earliest of these records may be found in Schapera, 1943, especially pp. 29–35. A general description of the more recent records is contained in an appendix to my note, “The recording of customary law: some problems of method”, 3 Botswana Notes and Records 12.

^{page 104 note 3} Under the General Administration Order in Council of May 9th, 1891, the High Commissioner in the exercise of his legislative powers was required to “… respect any native laws or customs by which the civil relations of any native chiefs, tribes or populations under Her Majesty's protection are now regulated, except so far as the same may be incompatible with the due exercise of Her Majesty's power and jurisdiction” (art. 4).

^{page 104 note 4} A Handbook of Tswana Law and Custom, London, 1938, Chapter XVI.Google Scholar

^{page 105 note 1} Proclamation of June 10th, 1891, s. 8.

^{page 105 note 2} Nos. 19 of 1926 and 17 of 1927.

^{page 105 note 3} No. 75 of 1934.

^{page 105 note 4} The administration's interference with the powers of the Chiefs was fiercely resisted at every stage. Notable among the earlier disputes was Regent Isang Pilane's struggle with the administration over the right to grant divorces to Africans married under the Marriage Proclamation (the history of this dispute can be found in Botswana National Archives, File J. 647). Later, when the 1934 Proclamations were introduced, Regent Tshekedi Khama of the Ngwato and Chief Bathoen II of the Ngwaketse contested their validity in the courts (Tshekedi Khama and another v. The High Commissioner 1926–1953 H.C.T.L.R. 9).

^{page 105 note 5} As was the case in other territories, the Bechuanaland Native Tribunals Proclamation also expressly excluded specified matters, such as the termination of marriages celebrated under the Marriage Proclamation, from the jurisdiction of these courts.

^{page 105 note 6} Even before the period of the Protectorate some Chiefs were in the habit of appointing official representatives to act in administrative and judicial capacities over members of the tribe and subject peoples living in outlying settlements. The habit seems to have originated among the Ngwato: see Schapera, I., “The Political Organisation of the Ngwato of Bechuanaland Protectorate”, in , Fortes & , Evans-Pritchard (eds.), African Political Systems, London, 1940.Google Scholar

^{page 106 note 1} No. 74 of 1935.

^{page 106 note 2} Although a central part in the proceedings was typically taken by close relations and trusted advisers of the Chief, and by others specially qualified by seniority in the tribe or regularity of attendance at kgotla; see Schapera, A Handbook of Tswana Law and Custom, Chapter XVI, especially p. 281.

^{page 106 note 3} Interference with the composition of the traditional courts was one of the central objections to the 1934 Proclamations put forward by Regent Tshekedi Khama and Chief Bathoen II in their litigation with the administration; see supra, p. 105, n. 4.

^{page 106 note 4} Under the Native Courts Proclamation, No. 13 of 1942, a Native Court was constituted “in accordance with the native law or custom of the area in which the Court is to have jurisdiction” (s. 3); under the present Customary Courts Proclamation, No. 19 of 1961, a customary court is constituted “in accordance with customary law” (s. 4 (1)).

^{page 106 note 5} Schapera, 1943, p. 28. To these may be added the two Chief's Courts and 12 wards courts which had at that time been constituted in the Tlokwa and Malete tribal territories.

^{page 106 note 6} Schapera, 1943, p. 29.

^{page 106 note 7} This table is based on the information contained in Supplement E to the Botswana Government Gazette dated April 28th, 1967, with corrections to bring it up to date at October 1st, 1971. At that date quite extensive changes in the number of warranted customary courts were being considered by the Botswana Government; see infra, p. 121.

^{page 106 note 8} No. 29 of 1965. Sir Seretse Khama is disqualified by virtue of his membership of the National Assembly.

^{page 107 note 1} See supra, p. 105, n. 6.

^{page 107 note 2} But note the special arrangements at Serowe, Mochudi and Kanye referred to by Schapera; Schapera, 1943, p. 28. These still prevail.

^{page 108 note 1} Land disputes seem to be quite frequently disposed of on the site without any record being kept; and this is also the case with inheritance disputes settled at the cattle post of the deceased. In the Kgatla tribal territory, for example, I came across two recent instances in which the cattle of senior members of the tribe had been divided by the Chief, following disputes, without any record being made. It may also be the case that in a few disputes no record is kept because the court wishes to conceal the matter, or the way in which it is dealt with, from the eyes of the administration.

^{page 108 note 2} Published in Schapera, 1943.

^{page 108 note 3} Infra, at p. 128. This table is reproduced from Schapera, 1943, p. 31.

^{page 108 note 4} Corresponding population figures for the period covered by Schapera's material are given in A Handbook of Tswana Law and Custom, p. 2.

^{page 109 note 1} As these offences were all committed outside the geographical area of the Chief's jurisdiction, it is very doubtful whether he was competent to try them; although this point does not seem to have been taken.

^{page 109 note 2} The land known as the Barolong Farms was originally an arable and grazing area occupied by the Tshidi-Rolong; but from the latter part of the 19th century onwards Rolong tribesmen began to set up residence permanently there, in many cases without retaining a residence in the central village of Mafikeng.

^{page 109 note 3} Over the period under consideration the number of disputes recorded annually by this court varied between 40 and 80.

^{page 109 note 4} See Tables III and IV, infra, at p. 112; also the more detailed tables in Appendix A.

^{page 109 note 5} Schapera, 1943, pp. 30–33.

^{page 109 note 6} Kuper, 1969, p. 38.

^{page 110 note 1} The plaintiff seems almost invariably to formulate his complaint in the first way where he is in dispute with a close kinsman, irrespective of the nature of the taking.

^{page 110 note 2} Schapera, 1943, p. 32; Kuper, 1969, p. 38.

^{page 111 note 1} Schapera, 1943, p. 33.

^{page 111 note 2} Schapera, 1943, Table II, p. 33.

^{page 111 note 3} Tables V-X are set out in Appendix A, infra, at pp. 122–127 to avoid disrupting the text.

^{page 111 note 4} Supra, at p. 110.

^{page 111 note 5} Supra, at p. 109.

^{page 112 note 1} See supra, Table II, p. 108, and p. 108, n. 4.

^{page 113 note 1} See infra, p. 115.

^{page 114 note 1} Both the civil and ecclesiastical forms of marriage provided under the Marriage Proclamation are available to Tswana tribesmen.

^{page 114 note 2} “The settlement of family disputes in the Kgatla customary courts: some new approaches”, [1971] J.A.L. 60; “Kgatla law and social change”, 2 Botswana Notes and Records 56.

^{page 114 note 3} Kuper, 1969.

^{page 114 note 4} Kuper, 1969, p. 41.

^{page 114 note 5} While in most cases Schapera's data cover the relatively short period 1935–1940, the Ngwaketse records begin in 1910, and thus provide a clear 30-year span.

^{page 114 note 6} The validity of Kuper's view as regards the Kgalagari courts themselves could only be tested if we knew what the business of these courts looked like in the 1930's.

^{page 114 note 7} The distribution found by Kuper in the Kgalagari courts he surveyed was as follows: domestic and personal status—10%; property—2%; contracts—4%; delicts—69%; penal offences—15% (Kuper, 1969, 40). Kuper seems to have considered the drop in property and contract disputes unimportant, but he did think the sharp rise in delicts significant; see infra, p. 116, n. 3.

^{page 114 note 8} In view of the special position of the Tawana Chief's Court, noted supra, at p. 111, a more realistic comparison can be made with the Chief's Representative's Court at Maun, which is effectively the central court of the Tawana tribe. Before this court the distribution of issues is roughly as follows: domestic and personal status—8%; property—8%; contracts—20%; delicts—37%; penal offences—25%.

^{page 114 note 9} See supra, n. 8.

^{page 115 note 1} We have seen that he found contractual disputes to account for 14% of the business of the courts he investigated.

^{page 115 note 2} Although the number of property and contract disputes coming before the Kgatla court is significantly higher than that of the other two.

^{page 115 note 3} However, when the Tlokwa data are considered, the distorting influence of the “external” business in the years 1964 and 1965 must be taken into account. If these years were excluded, the Tlokwa figures would not be far out of line with the first three courts.

^{page 116 note 1} See infra, p. 117.

^{page 116 note 2} See supra, p. 114, n. 8.

^{page 116 note 3} Dr. Kuper on the other hand, argues in dealing with the Kgalagari material that assaults are likely to be more numerous in small face-to-face communities; Kuper, 1969, 42. On this basis he explains the high (30%) percentage of assault cases found in the Kgalagari courts. However, this percentage does not seem out of line with the contemporary figure for the Tswana. If we had data for the Kgalagari courts during the 1930's it would be easier to assess his view.

^{page 116 note 4} See infra, pp. 117–120.

^{page 117 note 1} This mode of inflicting corporal punishment was about to be prohibited when this article went to press.

^{page 118 note 1} In addition to the five recognised ward courts in the Malete tribal capital, Ramotswa, the outlying villages of Ootse and Mogobane each have a single recognised court of ward status. The court at the former tried five disputes in 1970, and the latter, 13.

^{page 119 note 1} I failed to make a note of the number of disputes recorded at Mahalapye for the years 1962 and 1963.

^{page 119 note 2} Schapera, 1943, 29.

^{page 119 note 3} Moatshe v. Matlapeng, Case No. 22 of 1965, at the Kgatla Chief's Court.

^{page 120 note 1} See supra, p. 104.

^{page 120 note 2} But where the lower-level agency is still active, the dispute is typically remitted to it. An example is provided by the Mathubudukwane kgotla's remission of Tsutsupe's dispute with Mmaphatlana to the Ramoleti kgotla.

^{page 121 note 1} No. 29 of 1962.

^{page 121 note 2} No. 50 of 1970.

^{page 121 note 3} The only court in which I was able to watch the early operation of the Affiliation Proceedings Act was the magistrate's court at Mochudi, in the Kgatla tribal territory. There, while there was an early spate of applications for relief in the form of periodic payments in affiliation cases, the flow has since eased. Many tribeswomen seem to consider that the four beasts traditionally awarded in the Chief's Court in a case of impregnation may represent a sounder investment than the hazards of the monthly remittance.

^{page 121 note 4} No. 54 of 1968.

^{page 121 note 5} Under the African Courts (Amendment and Supplementary Provisions) Act, No. 57 of 1968, s. 9.