Botswana
Botswana High Court leaves traditional marriages to customary courts

Misanet.com / Mmegi, 4 December - The High Court in Lobatse, Botswana, this week ruled that traditional marriages are best dealt with by the customary courts. The decision follows an attempt by Jane Mafokate to divorce her husband, Isaac Mafokate, before the court. 

Whilst the Chief Justice Julian Nganunu and Justices Ian Kirby and Munalula Lisimba did agree with the applicant's attorney that the High Court had original jurisdiction to hear any matter before it, they ruled that this particular case was not desirable. 

- We are of the view that it is erroneous for a plaintiff who wants to dissolve a customary law marriage to seek to base his grounds of divorce on the legal grounds provided under the Matrimonial Causes Act, as was done in this case, the judges said. 

- The provisions of the Act do not apply to customary marriages, which are still regulated by customary law. The grounds of divorce for a customary marriage must be based on the customary rules of law which apply in the particular tribe or tribal community in Botswana to which the parties belong and which give a legal right to a party to divorce in case of their breach. Before whatever court the case may be brought, the law will be that which the parties tribal kgotla would have recognised as evincing that the marriage ought to be dissolved. The present case appears to us to be one that is easily susceptible to determination to completion by the customary court, subject of course to the right of appeal ultimately to the High Court by any party that may be dissatisfied, the judges said.

The court did not rule on costs as both counsels Thabiso Tafila and Sadique Kebonang for the applicant and respondent respectively, were eager to get an opinion of the court. The case is the first of its kind and in the words of the Chief Justice, involved "serious constitutional issues and principle" which necessitated the sitting of three judges. A senior counsel from the Attorney General's Chambers, Tshepo Motswagole, also came in to assist the court in explaining the law. 

Jane and Isaac were married in 1993 under customary law in Mochudi. They have two children aged between five and ten. After concluding that the marriage was irretrievably broken, Jane issued summons to divorce under the Matrimonial Act. 

Her attorney argued that under section 95(1) of the constitution of Botswana the High Court was competent enough to hear the matter and dissolve the marriage. The section reads: "There shall be a High Court for Botswana which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law." 

The court agreed with the argument in principle but disagreed that the case could not be argued under the Matrimonial Act as the plaintiff's attorney had done. The Court could have entertained it if it were argued in the legal form and substance of customary law. "In the case before us, we have pointed out that the plaintiff's declaration has been based on the provisions of the Matrimonial Cause Act in both form and legal substance, whereas in our view it ought to have been based on the applicable principles of customary law. 

- Framed in that manner, it cannot be justifiable before this court or for that matter any court in relation to the dissolution of a customary marriage, that ought to be dissolved by virtue of legal grounds based on customary law. The case must therefore, be dismissed on the simple ground that it is erroneously grounded and misconceived, said the judges. 

The custody of the children has not been decided and the social welfare office in Gaborone is enjoined to advise the court on the matter. 

By Letshwiti Tutwane, Mmegi

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