A Family Home, Five Sisters and the Rule of Ultimogeniture: Comparing Notes on Judicial Approaches to Customary Law in South Africa and Botswana

Abstract

Given the striking commonalities between the legal systems of South Africa and Botswana, both in terms of its common and customary law, and considering the propensity of the Botswana courts to engage with South African case law, a recent case of Botswana is of particular interest. In September 2013 in the Ramantele case, the Botswana Court of Appeal ruled on a customary law dispute that had been drawn out for more than seven years. The litigation history reads like a jurisprudential chronicle and demonstrates how traditional justice operates on various levels in a pluralistic justice system, and is a perfect example of legal pluralism in action. The case is interesting for a variety of reasons. First, it considers important principles regarding the meaning, status and ascertainment of customary law. Second, it discusses the influence of the Constitution on customary law and, third, it deals with the very important question as to the application of the Botswana Constitution on customary law. Lastly, it reflects on the role of the judiciary in solving customary disputes which, according to Lesetedi JA, is limited to the interpretation of 'the law to be applied in the dispute' and not to 'traverse issues that do not directly arise ... however important they may be'. In light of the fact that the Botswana legal system follows the principle of stare decisis and the fact that courts engage with the judgments of other jurisdictions, this case has the potential to influence the outcome of future cases of a similar nature. Against this background, this contribution investigates the contrasting approaches to constitutional adjudication in the context of customary law in the Botswana High Court and Court of Appeal, especially with reference to the approach followed by the South African Constitutional Court in the BHE case.