The Botswana Customary Law Act, 1969

Abstract

Prior to 1969 the legal system of Botswana enjoyed the characteristics of the dual existence of customary and common law (and the courts in which they were administered) typical of most of Anglophone Africa. The common or general law was the Roman-Dutch law “received” from the Colony of the Cape of Good Hope and this was the only law to be applied in the ordinary courts (High Court and Subordinate Courts) in the exercise of their original jurisdiction. Customary law was the preserve of the customary courts. Three main questions were inherent in the working of this system:(1) How was it to be determined which system of law (and, therefore, which system of courts) was appropriate for deciding a particular case?(2) If it was decided that customary law was to be applied, which system of customary law was appropriate?(3) Again, if customary law was to be applied, how were its rules to be ascertained in the courts?The Customary Law (Application and Ascertainment) Act of 1969 appended to this article, introduced far-reaching changes in the administration of the dual legal system and in particular contained for the first time statutory answers to the questions posed above.