The Molepolole customary court’s recent decision to award damage costs against an alleged adulterer is said to have completely ignored the legal principle of judicial precedent.
Kgosi Kebonyethebe Kgari’s order is said to have gone against precedent set by Justice Lot Moroka’s landmark judgement which practically legitimized adultery.
In his 2018 judgement Justice Moroka ruled that the offense of adultery is no longer consistent with the good morals of contemporary Botswana.
The judgement said infringements of personality rights based on adultery which affords the innocent spouse a claim for contumelia (disrespect) and loss of consortium (companionship) is no longer wrongful and thus no longer available as part of the Botswana laws.
Moroka’s judgement had come on the back of another landmark decision by the South African Constitutional Court that a wronged spouse could no longer sue for damages, saying that marriage was based on the concept of two willing parties and it did not seem appropriate in this day and age to have the law intervene in personal affairs. They said one could not attach a monetary value to marital fidelity and the third party involved in the infidelity could not be sued for damages.
Both judgements however have had no bearing on the recent decision by the Molepolole customary court as reported by The Voice newspaper.
“Kgosi Kebonyethebe Kgari …on Tuesday found Motlatsi Tswiiga …guilty and ordered him to pay the fine to his boss, Oagile Merule, 61, in four months.” Tswiiga, a herdsman, had allegedly been caught by his employer in a compromising position with the boss’ wife. The customary court slapped Tswiiga with a P20, 000 fine.
While the Lobatse High Court also upheld Kgosi Keineetse Sebele’s Customary Court of Appeal conviction of marriage wrecking (offense also committed in Molepolole), Justice Reuben Lekorwe said the circumstances of the case did not call for his immediate consideration of Francistown Justice Moroka’s judgement. Justice Lekorwe said the matter had been decided by the customary courts long before the Moroka decision and as such he could not retrospectively nullify Sebele’s decision.
The legal doctrine ‘stare decisis’ (let the decision stand), it has become apparent, has had no bearing on the decisions of the customary court as evidenced by Kgosi Kgari’s decision.
Also known as the ‘binding precedent’, stare decisis is the principle by which ‘judges’ are bound by previous judicial decisions especially of superior courts.
It is not clear how, being subordinate to the courts of common law, Botswana’s customary courts cannot be bound by the doctrine of judicial precedent. Litigants not satisfied with the decisions of customary court appeal to the superior common courts which courts also apply customary law in determining the appeals. This then raises questions as to whether or not Dikgosi are competent enough to deal with matters on the basis of precedents set by common law courts, or they simply just choose to confine themselves to customary law and ethnic traditions.
The Customary Courts Act, Section 32 ‘Right of Audience’ bars legal representation for litigants at customary courts. “Notwithstanding anything contained in any other law, no advocate or attorney shall have a right of audience (a) in any customary court …” As a consequence, legal practitioners are unable to assist Dikgosi (Chiefs) and direct them to binding decisions of the courts of common law. The principle of precedent may also be difficult to implement at customary courts because there is no law reporting.
A United Nations (UN) report on Botswana earlier this year expressed reservations about the powers of Dikgosi (Chiefs) arguing it causes serious concern that they can impose severe punishments while they are not trained legal professionals, following proceedings in which the defendants have no legal representation.
The report says while the ability of the customary courts to swiftly deliver community-based resolution and reconciliation is commendable, there were serious reservations as to their extensive jurisdiction and sentencing powers.