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Ten Years of the Botswana Matrimonial Causes Act—Further Proposals for Divorce Reform*
Published online by Cambridge University Press: 28 July 2009
Extract
The Matrimonial Causes Act, 1 of 1973 (Cap. 29:07 of the Laws of Botswana) was passed by the National Assembly on 27 October, 1972. It was assented to by the then President of Botswana, the late Sir Seretse Khama, on 2 February, 1973, and entered into force a week later on 9 February, 1973. The Act applies to civil marriages only, i.e. marriages concluded in terms of the Marriage Act (Cap. 29:01); customary law marriages have been excluded from its operation. As its short title indicates, the Act deals with matrimonial causes, that is to say divorce, judicial separation and the annulment of marriages and matters incidental thereto such as the property rights of spouses, custody, guardianship, maintenance and the jurisdiction of the courts.
During its first 10 years of existence the Act has been the subject-matter of many a decision of the High Court and provisions of it have been considered also by the Court of Appeal. Most of these decisions deal with divorce. In academic circles, too, the Act received attention, witness the review by Chris Himsworth in the Journal of African Law. This review was written immediately after the Act came into force. An updated account is therefore appropriate. As I intend to approach the Act from a broader historical and jurisprudential angle, I will deal with it afresh rather than use Himsworth's penetrating but positivistic analysis as a frame of reference.
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References
1 See s. 3; s. 4 further limits relief under the Act to monogamous marriages.
2 Himsworth, C. M. G., “Effects of matrimonial causes legislation in Botswana”, [1974] J. A. L., 173–179Google Scholar.
3 Hansard, (National Assembly), Vol. 42 (1972) 83Google Scholar.
4 The general law of Botswana constitutes a “mixed legal system”, i.e. partly Roman-Dutch, partly English. See Allott, A. N. (ed.), Judicial and Legal Systems in Africa, 2nd. ed., 1970, 261–273 (Simon Roberts)Google Scholar; Aguda, A., “Legal development in Botswana from 1885 to 1966”, 5 Botswana Notes and Records 52–63Google Scholar; Sanders, A. J. G. M., “The characteristic features of the Southern African legal system”, (1981) 14 C.I.L.J.S.A. (November issue)Google Scholar.
5 “Comparative law and legal change”, (1978) 37 C.L.J. 313–336, at 331Google Scholar.
6 Hansard, (National Assembly), Vol. 41, part I (1972) 15Google Scholar.
7 Matrimonial Causes Bill, 22 of 1972, Government Gazette Vol. X (1972) supplement B159Google Scholar.
8 Hansard, (National Assembly), Vol. 41, part I (1972) 15Google Scholar.
9 Report of the Select Committee on the Matrimonial Causes Bill 1972: The National Assembly, P.O. Box 240, Gaborone.
10 Hansard (National Assembly), Vol. 42 (1972) 83, Vol. 41, part I (1972) 20.Google Scholar
11 Hansard (National Assembly), Vol. 42 (1972) 91Google Scholar..
12 On “legislative borrowing” see Kahn-Freund, Otto, “On uses and misuses of comparative law”, (1974) 37 M.L.R. 1–27Google Scholar; Watson, Alan, “Legal transplants and law reform”, (1976) 92 I.Q.R. 79–84Google Scholar, “Comparative law and legal change”, (1978) 37 C.L.J. 313–336Google Scholar; Allott, A. N., The Limits of Law, 1980Google Scholar.
13 See Allott, A. N., The Limits of Law, 117Google Scholar.
14 Compare Allott, A. N., “Reforming the law in Africa—aims, difficulties and techniques”, and Sanders, A. J. G. M., “In search of disciplined law reform”, [in] Sanders, (ed.), Southern Africa in need of Law Reform, 1981, 228–236, 237–245Google Scholar.
15 See Kahn-Freund, Otto, “Law reform in Kenya”, (1969) 5 E.A.L.J. 54–87Google Scholar; Read, James S., “Marriage and divorce: a new look for the law in Kenya?”, (1969) 5 E.A.L.J. 107–140Google Scholar. However, see also (1979) J. A. L. 109–114 re the rejection of the Marriage Bill in KenyaGoogle Scholar.
16 At p. 174.
17 The Limits of Law, 119Google Scholar.
18 Compare the Report of the Law Reform Committee on: (a) Customary Marriage and the Marriage Act; (b) Citizenship Act; (c) Road Transport Act; (d) British South Africa Land Act; (e) Amendments to the Law to incorporate an Irresistible Impulse; (f) Amendments to the Constitution; (g) Death Duties Act; (h) Liquor Act; (i) Arms and Ammunition Act, 1980, Government Printer, Gaborone.Google Scholar
18a 1976 B.L.R. 31, at 32Google Scholar.
19 Hansard (National Assembly), Vol. 42 (1972) 87Google Scholar.
20 Hansard (National Assembly) Vol. 41, part I (1972) 17–18Google Scholar.
21 At p. 175.
22 Separation is perhaps the best indication of marital breakdown. Compare Mhlanga v. Mhlanga (unreported) Matrimonial Cause 55 of 1977Google Scholar; Noke v. Noke, 1979 B.L.R. 109Google Scholar; Mogodi v. Mogodi (unreported) Matrimonial Cause 36 of 1979Google Scholar; Dube v. Dube (unreported) Matrimonial Cause 41 of 1980Google Scholar.
23 Hansard (National Assembly), Vol. 42 (1972) 88Google Scholar.
23a 1979–80 B.L.R. 263, at 266.
24 S. 15(3) reads as follows: “If the court is satisfied on the evidence of any such fact as is mentioned in subsection (1), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall grant a rule nisi for divorce”. The marriage is in law only dissolved when the rule nisi is made absolute. The Act is silent as to the period that should elapse between the pronouncement of the rule nisi and the order making it absolute. This period should normally be such as to enable ancillary matters to be settled. The usual practice of the Botswana High Court is of allowing a period of at least six weeks to elapse. See Dube v. Dube (unreported) Matrimonial Cause 41 of 1980 with regard to the history of the rule nisi in divorce suits and Botswana practice.
25 In Pheto v. Pheto, 1975(1) B.L.R. 59, at 61Google Scholar, Rooney, J., found, with reference to Roper v. Roper and another [1972] 3 All E.R. 668Google Scholar and Cleary v. Cleary [1974] 1 All E.R. 498Google Scholar, that the court had the duty of satisfying itself, on a balance of probabilities, that the plaintiff was in fact telling the truth and should therefore not accept a plaintiff's bare assertions as conclusive. Other decisions to the same effect are Ncube v. Ncube (unreported) Matrimonial Cause 44 of 1973Google Scholar, Modise v. Modise, 1974(2) B.L.R. 11Google Scholar, Khamane v. Khamane, 1976 B.L.R. 22Google Scholar, Ratshosa v. Ratshosa and another, 1978 B.L.R. 64Google Scholar, Noke v. Noke, 1979 B.L.R. 109.Google Scholar
25a 1976 B.L.R. 22.
26 Although according to the law of Botswana and that of other countries following the English rules of statutory interpretation, an Act's travaux préparatoires cannot be used in the interpretation of the Act, it is of interest to note that in Parliament there was a strong feeling that insanity should not be a ground for divorce. See Hansard (National Assembly), Vol. 42 (1972) 90–91Google Scholar.
26 a [1972] W.L.R. 955, at 960A.
27 See also Thurlow v. Thurlow [1976] Fam. 32 at 42Google Scholar.
28 The number of matrimonial causes (almost exclusively divorce cases) in the High Court, which still has exclusive original jurisdiction in this regard, was 47 in 1973, 48 in 1974, 75 in 1975, 81 in 1976, 129 in 1977, 125 in 1978, 122 in 1979, 156 in 1980, 175 in 1981 and 201 in 1982. According to the as yet unofficial 1981 census figures, the married population of Botswana is approximately 200,000 out of a total population of 940,000. The census figures do not indicate how many of these 200,000 are married according to customary law only. But even if the number of people married according to civil law would be considerably less than 200,000, the number of decrees absolute of divorce per year per 1,000 of the married population would be nowhere near the figure in the United Kingdom, for example, which presently stands at 11.
29 The Law Commission: Reform of the Grounds of Divorce. The Field of choice. Report on a reference under section 3(1)(e) of the Law Commissions Act 1965 Cmnd. 3123 (1966) para 15Google Scholar. Incidentally the phrase, “the marriage has become an empty shell”, as a synonym for “the marriage has broken down irretrievably”, has become a rather popular one in Botswana divorce decisions—compare, for example, Rilley v. Rilley, 1979 B.L.R. 100Google Scholar, Pillar v. Pillar (unreported) Matrimonial Cause 89 of 1979Google Scholar, Dube v. Dube (unreported), Matrimonial Cause 41 of 1980Google Scholar, Matumo v. Matumo (unreported), Matrimonial Cause 150 of 1980Google Scholar, Dabudabu v. Dabudabu (unreported), Matrimonial Cause 20 of 1981.Google Scholar
30 See ss. 13 and 28(1).
31 See Kadiwa v. Kadiwa (unreported), Matrimonial Cause 13 of 1973Google Scholar, Peter v. Peter, 1974(1) B.L.R. 18Google Scholar, Ovoya v. Ovoya (unreported), Matrimonial Cause 87 of 1976Google Scholar, Sebolao v. Sebolao (unreported), Matrimonial Cause 98 of 1979Google Scholar, Malope v. Malope (unreported), Matrimonial Cause 52 of 1980.Google Scholar
32 Compare Peter v. Peter, 1974(1) B.L.R. 18Google Scholar, Kegakgametse v. Kegakgametse (unreported), Matrimonial Cause 60 of 1977Google Scholar. Dambuza v. Dambuza (unreported), Matrimonial Cause 63 of 1977Google Scholar, Mokobi v. Mokobi (unreported), Matrimonial Cause 129 of 1977Google Scholar, Rangongo v. Rangongo (unreported), Matrimonial Cause 67 of 1978Google Scholar, Sebolao v. Sebolao (unreported), Matrimonial Cause 98 of 1979Google Scholar, Baitsile v. Baitsile, 1979 B. L. R. 111Google Scholar; see also Chiepe v. Sago (unreported), Civil Cause 32 of 1981Google Scholar. In Malope v. Malope (unreported), Matrimonial Cause 52 of 1980Google Scholar and Mathumo v. Mathumo (unreported), Matrimonial Cause 128 of 1980, however, it was expressly stated that all things being equal, children of tender age are better off with their mother.Google Scholar
33 See s.13, which says nothing more than that the court shall have jurisdiction to make an order “determining the mutual property rights of the husband and the wife” and to vary such orders.
33a 1979–80 B.L.R. 250.
34 Examples of cases where the court appointed a curator are Matsheka v. Matsheka, 1977 B.L.R. 112Google Scholar, Isaacs v. Isaacs (unreported), Matrimonial Cause 65 of 1977Google Scholar, and Moshageng v. Moshageng (unreported), Matrimonial Cause 25 of 1980Google Scholar. In Matsheka's case the court considered the appointment of a magistrate or district commissioner as a curator impracticable and thought that an accountant would be the proper person. In the important decision of Moisakamo v. Moisakamo (unreported), Matrimonial Cause 106 of 1978Google Scholar (vide the decision of23 09, 1980Google Scholar) the parties to the civil marriage were both Africans. Hayfron-Benjamin, CJ, refused to follow the ruling of Hannah, J., in Molomo v. Molomo 1979-1980 B.L.R. 250Google Scholar that the Dissolution of African Marriages (Disposal of Property) Act (Cap 29:06) applied to marriages concluded on or after 16July, 1926, and accordingly held, in terms ofs.7 of the Married Persons' Property Act (Cap 29:03), that in the absence of an arrangement otherwise, the parties' matrimonial property regime was governed by customary law and had to be divided accordingly, i.e. on the basis of how the property was acquired. The court further found that it would be legally unsound to refer the matter of the division of the matrimonial assets to a customary court.
35 Hansard (National Assembly), Vol. 42 (1972) 92Google Scholar.
36 Hansard (National Assembly), Vol. 41, part I (1972) 24Google Scholar.
37 Hansard (National Assembly), Vol. 41, part I (1972) 24, Vol. 42 (1972) 93Google Scholar.
38 Hansard (National Assembly), Vol. 41, part I (1972) 22Google Scholar. Other Members of Parliament who felt that the duty to support should be reciprocal were Messrs. Monwela and Tshane—see Hansard (National Assembly), Vol. 42 (1972) 93, 95Google Scholar.
38 See, inter alia, Field of Choice.
40 For example: in s.7(l)(a) “either spouse” should read “the spouses”—see Egner v. Egner, 1974(2) B.L.R. 5 at 7.Google Scholar
In ss.7(1)(b) and 8(1)(b) there should be inserted after the words, “In the case of an action brought by a wife”, the words, “who is not domiciled in Botswana”—see Lincoln v. Lincoln, 1974(2) B.L.R. 44 at 45Google Scholar.
The reference in s. 13(1) (c) to paragraph (a) should be deleted—see Molomo v. Molomo, 1979–1980 B.L.R. 250 at 251–252Google Scholar.
In s. 13(1)(b) the word “minor” should be deleted so as to make provision for dependent children above the age of majority as well—see Himsworth, op. cit., 177.
In s. 17(1)(b) “petition” should read “action”.
In ss.17(3)(b) and 21(2) “respondent” should read “defendant”.
S.22 should be redrafted so as to make express provision for a minor's marriage without consent—see Himsworth, 178–179Google Scholar; and in s.22(6) the clause “unless such declaration be made on the ground specified in subsection 3(d)”, should bedeleted—see Himsworth, op. cit. 178, footnote 2.Google Scholar
In s.28(1) the word “guardianship” should be inserted after the word “custody”—see Himsworth, op. cit. 177.Google Scholar
In the proviso to s. 28(2) “21” should read “18”: the Select Committee on the Matrimonial Causes Bill had recommended that the age limit of 21 as stated in the Bill be reduced to 18, and Parliament decided accordingly.
Statutory provision should be made for bringing the common-law grounds for judicial separation into line with the new divorce law.
41 Hansard (National Assembly), Vol. 41, part I (1972) 19Google Scholar.