Law 106 Lesson 10 Customary Law Notes

Inter-Tribal Conflict of Customary Laws

  • Land Matters: The customary law of the place where the land is situated applies.
  • Inheritance Matters: Subject to land matters, the customary law applying to the deceased applies.
  • Other Matters:
    • The court applies the customary law the parties intended or are deemed to have intended to regulate their obligations.
    • In the absence of such intention, the customary law of the place where the action arose applies.
  • If Customary Law Cannot Be Ascertained: The court determines the matter in accordance with the principles of justice, equity, and good conscience.

Ascertaining Customary Law in Courts (Sections 11 & 12 of CLA)

  • Section 11 of CLA: Court may consult reported cases, textbooks, and other sources to ascertain customary law.
  • Section 12 of CLA: Special Recognition of certain statements as prima facie evidence of customary law.
  • Presidential Power: Empowers the President to declare statements of customary law via the Gazette to be prima facie evidence. Such statements are admissible in any court as prima facie evidence.

Jurisdiction & Excluded Offences

  • Civil Jurisdiction: Court empowered over causes of action:
    • Arising out of customary law or a written law for which court is authorized (s 11 (1) (a) & 15 of CCA).
    • Where the defendant is ordinarily resident within the court’s jurisdiction, or the cause of action arose wholly therein.
    • Where the value of the matter does not exceed the maximum amount set in warrant.
  • Criminal Jurisdiction:
    • Determined by warrant of establishment/recognition regarding criminal charges/matters related to offences committed wholly/partly within the court’s area – s12 (1) CCA.
    • Criminal jurisdiction may be increased by presidential order – s12 (5) CCA.
    • Court may be guided by Penal Code – s12 (3) CCA.
    • No person shall be tried for an offence unless it is created by Penal Code or some other written law – s12 (6) CCA.
    • Sentence shall not exceed warranted limit – s12 (2) CCA.
    • Prosecution may be brought by a person entitled under customary law or by DPP or person authorized by DP-s 12 (4) CCA.
  • Excluded Offence (s 13 of CCA):
    • Customary courts cannot try offences listed in s 13 of CCA unless otherwise confirmed.
    • Listed offences include treason, capital offences, rape, bribery, company law/insolvency offences, etc.
    • Offences relating to witchcraft are also excluded unless DPP consents.

Rules of Procedure

  • Customary Courts (Procedure) Rules (s 21 CCA): No customary court shall impose any punishment unless the criminal trial has been held in accordance with the provisions of these rules.
  • Customary Law (s 30 CCA): The practice and procedure of a customary court shall be regulated in accordance with customary law, subject to rules made under section 49.

Exclusion of Audience by attorneys/advocates (s32 CCA)

  • Customary Courts: Right of audience by advocates/attorneys excluded in any CC-s32 (a) CCA.
  • Magistrate’s Court: Right of audience by advocates/attorneys excluded in any magistrate’s court in any criminal/civil proceedings which fall to be determined by CL under the provisions of ss 37 (Transfer of cases), 39 (Revisory powers) and 42 (Appeals) except with the special permission of such court – s32 (b).

Transfer of Cases – s37 CCA

  • Party Demands Transfer (s 37 (1) CCA):
    • If a party demands a case to be transferred to some other court, the proceedings SHALL be suspended.
    • The matter is reported to the Customary Court of Appeal.
  • Unreasonable Delay (s 37 (2) CCA):
    • If a party considers that a CC is unreasonably delaying adjudication or has unreasonably refused to hear and adjudicate a matter, they may report it to the CCA.
  • CCA Powers (s 37 (3) CCA):
    • CCA may transfer the case to another CC or a magistrate’s court of competent jurisdiction.
    • Alternatively, CCA may decline to exercise its power, in which case suspension of proceedings in original CC ceases.
  • Fresh Proceedings (s 37 (4) CCA):
    • If proceedings are transferred from a CC to another CC or to a magistrate’s court, the court to which the matter is transferred shall start proceedings afresh/ de novo.
  • Adjudication Without Authority (s 33 CCA):
    • Any court exercising or attempting to exercise judicial authority despite a requirement to suspend proceedings is guilty of an offence.
    • Punishment: Fine not exceeding P100 or imprisonment not exceeding 12 months, or both.
  • Case Law: See Monica Tirelo v The Attorney General and BosadiboMoleu, High Court, case no. MAHLB-000405-06 (unreported).
  • Legal Developments: See B. Dinokopila, ‘Recent Legal Developments in Botswana’, 6 University of Botswana Law Journal (2007) 125, 141.