e Botswana Legal System CM Fombad @ LexisNexis:Contents Preface... se REGIS scatman PartI General introduction Chapter 1 The meaning, functions and classification of law Ll L2 13 14 15 1.6 The limitations on the elfectivenses of the law .. What is law’ Law distinguished from other normative systems 1.2.1 Law distinguished from morality . 1.22. Law distinguished from customs, conventions and other social norms... Law and justice. 13.1 Legal justics 1.3.2. Distributive or social justic 13.3 Corrective (rectificatory or remedial) justice 1.3.4 Natural justice. . The divisions of the law. 1.4.1 National law and international la 1.4.2 Common law and civil law 1.4.3 Law and equity... 1.4.4 Private law and public law 1.4.5 Civil law and criminal law. 1.4.6 Common law and statutory law 1.4.7 Substantive law and adjectival or procedural law The functions of the law. 1.5.1 The maintenance of social order. 1.5.2 The settlement of disputes... 1.5.3 The regulation of economic activities 1.5.4. The protection of property rights... 1.5.5. The protection of interests 115.6 The regulation of the principal organs of power... 1.5.7 Other functions... Chapter 2. Introduction to the major legal systems in the world 21 22 Introduction... 21 ‘The common law legal system B 2.2.1 History and development of English law. 24 2.2.1.1 The development of English law and the common law courts 24 2.2.1.2 The development of equity = 25 viiviii The Botswana Legal System Page 2.2.2 The sources of English law. 27 2.2.2.1 Common law . 21 2.2.2.2 Equity. 28 2.2.2.3 Legislation 28 2.2.2.4 Custom. 28 2.2.2.5 Law merchant.. 28 2.2.2.6 Canon law. 28 2.2.2.7 Roman law... 29 2.2.2.8 Law reports and judicial precedents 29 2.2.2.9 Textbooks... 29 2.2.2.10 Buropean Community and European Union law. 29 2.2.2.11 European Convention on Human Rights. 30 2.2.3. The structure of English courts. 30 2.23.1 ‘The European Court of Justice and the European Court of Human Rights. 31 2.2.3.2 The Judicial Committee of the Privy Counci 32 2.2.3.3. The Supreme Court. 32 2.2.3.4 The Court of Appeal 3 2.23.5 The High Court. 33 2.2.3.6 County Courts. 33 2.2.3.7 The Crown Court 34 2.2.3.8 Magistrates’ Courts. 34 2.2.3.9 Other Courts 34 2.2.3.9.1 The Court of Protection 34 2.2.3.9.2 Coroners’ Courts 35 2.23.10 Courts of particular jurisdiction .. 35 2.2.3.10.1 Courts-martial 35 2.2.3.10.2 Ecclesiastical courts.. 35 2.2.4 The personnel of the law in the English legal systei 36 2.2.4.1 The judges... 36 2.24.2 The law officers. 37 2.24.3 The legal profession ... 37 2.3. The civil law or Romano-Germanic legal system 38 2.3.1 Origins. 38 2.3.2 The main characteristics of the civil law system... 38 2.3.3. An illustration of the civil law legal system using the French legal system. 40 233.1 40 40 12. Case law (la jurisprudence), 4 3.1.3. Legal ee ecm: 41 4 liom a 42 2332 of French courts eee 42 principles that govern the structure « 42 re of French courts.Contents ix 2.3.3.3. Legal personnel in France.. 2.33.3.1 Judges....... " 233.32 The legal profession . 2.4. The socialist legal system.. 2.5 Religious legal systems — The Muslim Thea « system. 46 2.5.1 The structure of Muslim law. 46 2.5.2 The sources of Muslim lay 47 2.5.2.1 The Koran. 47 2.5.2.2. The Sunna. 47 2.5.2.3 The [ma 47 2.5.24 The kiyas (or givas) or analogical reasoning. 47 2.5.3 Muslim law today... 47 2.6 African law... 48 2.6.1 Some general features of African law een * 48 2.6.2 Sources of African law............ - 50 2.6.2.1 Custom .. 50 2.6.2.2 Legislation... 50 2.6.2.3, Precedents. 50 2.6.2.4 Expert opinions SI 2.6.2.5 Other sources Si 2.6.3 The future of African law Si 2.7. Mixed or hybrid legal systems. 33 Part II The development of the Botswana legal system and the sources of law Chapter 3 The historical origins and development of the legal system 3.1. The pre-colonial period 55 3.2. The colonial period... 56 1 The declaration of the protectorate. . 56 3.2.2. Genesis of the modern legal system — The reception of the English common law and Roman-Dutch law ...... . 57 3.2.3 The co-existence of received laws with “customary law.. J 3.3. The post-independence period... 61 3.3.1 The hybrid and dual legal order 61 3.3.2 The dynamics of legal reforms. 62 Chapter 4 The sources of law applicable in Botswana 4.1 Legislation... 68 4.1.1 Forms of legislation 68 4.1.1.1 Acts of Parliament. 68 4.1.1.2 Delegated or subsidiary legislation 69 4.1.1.3 Autonomic legislation .. 7 4.1.2. Purposes of legislation a 4.2 Common law....... R 4.2.1 The meanings of the expression “common law’ n 4.2.2 The content of Botswana common law ... BThe Botswana Legal System 43 44 45 4.6 Judicial precedent . 4.3.1 Judicial precedent as a source of Botswana law. 4.3.2 The general nature of the doctrine of binding precedent . 4.33 The binding elements in precedents... 4.3.3.1 The ratio decidendi... 43.3.2 The obiter dicta...... 4.3.3.3 Precedents that are not binding . 4.3.3.3.1 Precedents that constitute persuasive authority. 4,3.3.3.2 Precedents that have been overruled 4,3.3.3.3 Precedents that can be distinguished 4.3.3.3.4 Precedents established per incuriam 4.3.4 The operation of the doctrine of binding precedent within the hierarchy of courts in Botswana... : 4.3.4.1 The Court of Appeal... .2. The High Court... 4.3.4.3. Magistrates’ courts. 43.44 Customary courts Customary law. 4.4.1 The meaning of customary law. 4.4.2 The ascertainment of customary law. 4.4.3 The conditions for the recognition and enforcement of customary law. 4.44 Conflict of customary laws... Law reports . Legal writings..... Part Il The administration of justice Chapter 5 The courts of general juris 5.1 5.2 5.3 Introduction . 5.1.1 The classification of courts 5.1.1.1 Superior courts and inferior or subordinate courts . 5.1.1.2. Courts of record and courts not of record . 5.1.1.3 Civil courts and criminal courts...... 5.1.1.4 Trial courts and appellate courts .. 5.1.1.5 Courts and tribunals 5.1.1.6 Courts of general jurisdiction and courts of special jurisdiction 2 The structure of courts... 13 The applicability of certain general principles. ie Court of Appeal... 5.2.1 Composition 5.2.2 Jurisdiction ...... 5.2.2.1 Appeals as of right... 5.2.2.2 Appeals by leave 5.2.2.3 Appeals by the prosecution in criminal cases 5.2.2.4 Powers of the Court of Appeal in criminal cases ... 5.2.3. The impact of the Court of Appeal on the legal system. The High Court... 5.3.1, Composition . 5.3.2. Jurisdiction .. 5.3.3 Powers of the court when hearing appeals Page 74 74 74 16 16 71 B B 79 80 81 81 81 83 84 84 85 85 87 90 90 91 92 100 101 101 103 104 105 105 107Contents 54 5.5 5.6 Magistrates’ Courts.... 5.4.1 Regional Magistrate... 5.4.1.1 Civil jurisdiction 5.4.1.2. Criminal jurisdiction 5.4.2 Chief Magistrate 5.4.2.1 Civil jurisdiction . 5.4.2.2 Criminal jurisdiction 5.43 Principal Magistrate 5.4.3.1 Civil jurisdiction 5.4.3.2. Criminal jurisdiction 5.4.4 Senior Magistrate... 7 5.4.4.1 Civil jurisdiction 5.4.4.2. Criminal jurisdiction 5.4.5 Magistrate Grade I .. 5.45.1 Civil jurisdiction 3.4.5.2 Criminal jurisdiction 5.4.6 Magistrate Grade TI 5.4.6.1 Civil jurisdiction ........ 5.4.6.2 Criminal jurisdiction 5.4.7 Magistrate Grade Ill... 5.48 Matters excluded from the jurisdiction of magistrates" courts. Customary courts... 5.5.1 Classification of customary courts 5.5.1.1 Informal or unofficial customary courts 5.5.1.2. Formal or official customary courts 5.5.2 Jurisdiction 5.5.2.1 Civil jurisdiction $,5.2.2 Criminal jurisdiction .. 5.5.3 Appeals... 5.54 Control and supervision of customary courts 5.5.4.1 Supervision by the Minister and his appointees 5.5.4.2 Supervisory powers of chiefs... 5543 The revisory powers of magistrates" courts and Customary Courts of Appeal..... . 5.5.4.4 Supervisory powers of the High Court Specialist Courts. 3.6.1 The Stock Theft Courts 5.6.2. Small Claims Courts .. 5.6.3 Family Courts. 5.64 Traflic Courts Chapter 6 The courts of special jurisdiction 6.1 6.2. The Juvenile Court. ‘The Industrial Court... 6.1.1 Composition 6.1.2 Jurisdiction 6.2.1 Composition 6.2.2 Jurisdiction . Page 109 109 109 109 110 110 110 110 110 ul 1 1 1 Wd 1 il 1 Ii 11 112 112. 112 114 14 11s 116 116 7 117 M8 118 119 119 120 120 120 121 122 122 123 123 124 125 125 126xii The Botswana Legal System Page 6.3. The Court-martial 128 6.3.1 Composition .. 128 6.3.2. Jurisdiction 129 64 Land tribunal.. 130 6.4.1 Composition 130 6.4.2 Jurisdiction BL Chapter 7 Judges 7.1 Appointment... 133 7.2. Security of judicial office. 136 7.21 Tenure. nee 136 7.2.2. Discipline and removal from offic: 137 7.2.3. Due process of removal and discipline. 137 7.3. Judicial independence. 138 7.4 Judicial immunity 141 7.5. The judicial function . 142 75.1 Extra-judicial functions 142 7.5.2. Administrative functions 143, 7.6 Contempt of court. 144 7.6.1 Criminal contempt of court. 144 7.6.2 Civil contempt of court... 146 Chapter 8 Magistrates and members of customary courts 8.1 Appointment......ce. 149 8.2. Security of judicial office 151 8.2.1 Tenure 151 8.22 Discipline and removal 151 8.2.3 Due process of discipline and removal. 152 8.3. Judicial independence... 152 8.4 Judicial immunity 153, 8.5 Contempt of cout 153 Chapter 9 The Attorney-General 9.1 Appointment. 155 9.2. Security of tenure, 156 9.3 Constitutional statu 156 9.4 Functions 157 9.4.1 Civil Litigation Division. 157 9.4.2 Legislative Drafting Division . 157 9.4.3 International and Commercial Division... 158 9.4.4 Corporate Services Division . 158 Chapter 10 The Director of Public Prosecutions 10.1 Appointmeni 159 10.2 Security of tenure .. 159 10.3 Constitutional statu 160 10.4 Functions... 160Contents xiii Page Chapter 11 The legal Profession 11.1 Legal education .... 166 11.2. Admission to practise. 167 11.2.1 Admission and enrolment of citizen 167 11.2.2. Pupillage 169 11.2.3 Admission and enrolment of Commonwealth citizens 170 11.2.4 Admission and enrolment of non-citizens. 172 11.2.5. Admission of foreign advocates .. 172 11.3. Organisation of the professio 174 11.3.1 Attorneys, 6: 175 11.3.2 Advocates 175, 1 The Law Societ 176 11.4 Liabilities of legal practitioners. é 177 114.1 Liability for professional misconduct and other offences created under the Act 177 11.4.2 Liability as officers of the cour 180 11.4.3 Civil liability 182 11.5 The Fidelity Guarantee Fund. 183 11.6 Remuneration.... 184 17 The role of legal practitioners in society... 184 Part IV The enactment and interpretation of statutes Chapter 12 The enactment of statutes 12.1 The pre-legislative stage... “ 187 12.1.1 The sources of legislation 188 12.1.2 The consultative process 190 12.1.3. The role of the Cabinet. 191 12.1.4 The drafting process. 192 12.2 The legislative stage....... 193 12.2.1 The first reading .. 193 12.2.2 The second reading 194 12.2.3 Proceedings before the Committee of the Whole House ‘and a Select Committee. i 195 12.2.4 The third reading 196 12.2.5 Amendments to the Cons 197 12.2.6 Presidential assent 198 12.3 Conclusion 199 Chapter 13 The interpretation of statutes 13.1 The different parts of a statute..... 202 13.1.1 The enacting parts of a statute 202 1 The interpretation or definition sections 203 203 204 13.1.2. The other parts of a statute... 204 13.1.2.1 The title. 205 13.1.2.2. The preamble..... 206 13.1.2.3 Marginal notes or side notes. 206 13.1.2.4 Headings 206xiv The Botswana Legal System Page 13.1.2.5 Schedules... 207 13.1.2.6 Punctuation 208 13.2 The general rules of statutory interpretation. 208 13.2.1 The literal rule... 209 13.2.2 The golden rule. 211 13.2.3 The mischief rule.. 213 13.3 Presumptions... en . ee 215 13.3.1 The presumption that the legislature did not intend to be unreasonable or to cause injustice. esse nee . 217 13.3.2 The presumption that the legislature did not intend to allow for inequality and partiality of treatment — . wane BEF 13.3.3 The presumption that the legislature did not intend to deprive an individual of his vested right: noe Seen ne 217 13.3.4 The presumption that taxation statutes should be strictly interpreted in favour of the taxpayer... ’ snee 218 13.3.5 The presumption in favour of the strict interpretation of penal statutes 219 13.3.6 The presumption that statutes should be interpreted in favour of individual liberty. Soon : 220 13.3.7 The presumption that the accused must have committed an act with ‘mens rea to be convicted of a statutory OfFENCe. econ . 21 13.3.8 The presumption that the legislature did not intend to alter the existing law more than is necessary .eecoeseee nn : 222 13.3.9. The presumption against interpreting statutes in such a way as to oust or restrict the jurisdiction of the superior courts..... 223 13.3.10 The presumption against the interpretation of statutes in such away that they operate retrospectively — 228 13.3.1] The presumption against interpreting statutes in such a way as to violate a rule of international law. : soe 231 13.3.12 The presumption that a reference in a statute to any action or conduct is intended to be a reference to lawful action of CONdUCE ee. ssesussneenseue 231 13.3.13 The presumption that the same words in the same statute have the same aura 231 13.4 232 13.4.1 The ejusdem generis rule.. .. 232 13.4.2 The expressio unius, exclusio alterius rule. 234 13.4.3 The cessante ratione legis cessat ipsa lex rule 236 13.44 The noscitur a sociis rule 236 13.4.5 Statutes in pari materia. ee . 237 13.4.6 The rule that a later aw repeals an earlier law that is inconsistent with the later law . . 239 13.4.7 The rule that a passage is best interpreted by reference to what precedes and what follows it. seven ee 239 Part V Some fundamental legal skills Chapter 14 Elements of good examination practices and skills 14.1 Preliminary matters, 241 14.1.1 Introduction... 241 14.1.2 Types of law examination questions. 241 14.1.3. The importance of looking at past examination questions. 2431 The meaning, functions and classification of law sears re tt TO OES SSS NIRS 1.1 What is law? Every one of us knows something about the law either from personal experience, the television, newspapers, radio, etc. The law is invisibly present with each of us everywhere and at all times from the moment of birth until we die and are buried. Most of our daily actions, even the most innocuous, may be fraught with tremendous legal consequences. In spite of this, the apparently simple question: what is the law?, has caused so much ink to flow from the pens of jurists and philosophers over the centuries in an endeavour to provide a universally acceptable definition with little sign that this objective will ever be attained. Jurists can easily tell you how they approach legal problems, who administers the law and how it is administered, but find it nigh impossible, after hundreds of years, to come up with an authoritative definition of the word law. As Hart puts it, “few questions concerning human society have been asked with such persistence and answered by serious thinkers in so many diverse, strange and even paradoxical ways as the question ‘what is law’”.' It is little wonder that Antony Allott, writing in 1980, referred to this as the “great unanswerable question.”” The question still awaits an answer today. If such is the case, then it may be asked why anyone should bother with a potentially futile attempt to define Jaw at all. May we not simply adopt one of the established meanings of law and assume that the meaning of the term will become clear as more legal materials are studied?’ Sterile though the controversy over what exactly is meant by law may be, one cannot run away from another attempt at defining the concept of law.’ Whilst a comprehensive and accurate definition of law is neither desirable nor attainable, an attempt is not necessarily futile. A general definition of law will help to provide a good starting point for understanding and appreciating the nature and scope of the law and the way it operates in any legal system. Such a definition should be seen as providing nothing more than an overall picture and emphasises certain key criteria that will illuminate our understanding of the way the law operates, but should not be regarded as an axiom from which all subsequent conclusions may logically be inferred. A definition is particularly important to a beginner because of the fact that the word law is used in so many different contexts in many different and complex ways.° Linguistically, the HLA Hart, The concept of law, 2nd ed, Oxford, Clarendon Press (1994), p 1 2 In, The Limits of the Law, London, Butterworths (1980), pp v and 1. 3 For an elaborate discussion of the problems of defining law, see David M Walker, The Oxford companion to Jaw, Oxford, Clarendon Press (1980), pp 716-20 and MDA Freeman, Lloyd’s introduction to jurisprudence, 8th ed, London, Sweet and Maxwell (2008), pp 33-82. 4 As Thurman puts it, “Obviously, ‘law’ can never be defined. With equal obviousness, however, it should be said that the adherents of the legal institution must never give up the struggle to define law, because itis an essential part of the ideal that it is rational and capable of definition”, cited in MDA Freeman, Lloyd's intro- duction to jurisprudence, op cit p 39. 3 For eg, Antony Allott, Joc cit pp 1-3 makes @ distinction between what he refers to as “three different phenomena” of law. One is the general idea or concept of legal institutions abstracted from any particular (continued)4 The Botswana Legal System word law is used in a multiplicity of non-legal contexts. We have, for example, the laws of nature and scientific laws. Examples of these include the laws of demand and supply in econom- ics, the law of gravity in physics and a host of others. When used in this sense, law refers to a physical or natural relationship that is observable in nature or provable by experiment. It cannot be altered by humans and we can only submit to such laws or use them for our own purposes. ‘These, especially the scientific laws like the law of gravity, are timeless and uniform and can not be broken. In its legal sense, the term law is derived from the Scandinavian word, /agu, meaning some- thing that is settled and laid down. For our purposes here, we could adopt as a working defini- tion of law, that provided by the Shorter Oxford English Dictionary, which defines law as, “the body of rules, whether formally enacted or customary, which a particular State or community recognises as governing the actions of its subjects or members and which it may enforce by imposing penalties.” Three salient features of law are conveyed in this definition, viz, that law regulates human conduct, that they are based on the general will of the members of the commu- nity and that they are binding and enforceable. However, the crucial fact to note is that laws are basically a body of rules. Because, as rules, they guide us as to what we ought or ought not to do, they are said to be normative.® Norms are basically regulations setting forth how persons are to behave and operate as a means of social control, fostering social order in modern society. From this perspective, it will be noticed that the activities of human beings in society are not regulated solely by laws or legal rules. Besides legal rules, there are also various other normative rules, whether moral, ethical, conventional or just customary, that also lay down standards of behaviour that people ought to conform to. It is therefore necessary that law be clearly distin- guished from the other normative systems that also attempt to promote social order in society. 1.2 Law distinguished from other normative systems Defining law as a “system of rules” is not accurate or even adequate because there are other systems of rules such as moral rules, customs, conventions and other social norms that also aim to regulate and control human conduct in society. How do these differ from legal rules? 1.2.1 Law distinguished from morality Morality, and associated terms like ethics,” is like law, difficult to define. For example, there are certain rules or principles which some would rank as moral and others would not. Even where there is agreement that certain rules and principles are moral, there may still be disagreement as to the exact status of such rules or principles." Nevertheless, the concept of morality usually ovcurrence of them. The second is a coherent, total, particular legal system prevailing in a given community or country and the third is a particular normative provision of a law, a rule or norm of a given legal system. 6 See Bernard F Cataldo, Frederick G Kempin, John M Stockton, and Charles M Weber, Introduction to law and the legal process, 3rd ed, New York, John Wiley and Sons (1980), p 8. 7 See Leslie Brown (ed), The new shorter Oxford English dictionary of historical principles, Vol 1, London, Clarendon (1993), p 1544. 8 A norm is an “ought” pro certain conditions. 9 Distinguishing between ethical and moral rules is quite difficult. However, ethical rules are generally concerned with standards of conduct in professional life such as teaching, medicine and the law itself. In this sense, ethics can be seen as a sub-division of morality. Many professional associations have their codes of behaviour or what is referred to as codes of ethics. Sometimes, some of the rules contained in these codes of thies correspond and coincide with legal rules. 10. See further, HLA Hart, The concept of law op cit p 168. mn since it expresses not what is or must be, but what ought to be, givenChapter 1: The meaning, functions and classifteation of law 3 carries at least three possible connotations, '! viz, the moral code of a religion, the moral deci- sions of the individual and the accepted moral code of a community, or its mores.'” Morality as an aspect of religion is often influenced by one’s religious beliefs. For example, the Christian’s conception of what is good or bad may be influenced by the Bible and specific doctrines, teachings and rules such as the ‘Ten Commandments. Other religions, such as Islam, also contain revelations of what is morally accepted to Muslims. The second form of morality, the personal moral values or individual ethics, which enables individuals to distinguish good from bad, may also be influenced by religious beliefs. This deals essentially with the internal motives of a person and no outward manifestation of the individual’s conduct is required. The third form of morality, which deals with the moral code of a community, sometimes referred to as positive morality, deals with moral norms actually accepted and shared by a given community or group. Unlike personal morality, the individual must conform to the accepted norms of positive morality. Generally, moral rules and obligations vary from society to society or within a single society, from time to time. Some of them may reflect or are actually based on erroneous or even absurd superstitious beliefs as to what is required for the health or safety of the group. For example, in certain African tribes, in the early 1930s, it was believed that twins were a bad omen for the community and should be killed immediately when they were delivered. Morality is connected with law in many ways. First, common moral values, such as honesty, humility, charity and justice concern a “should do” or “ought not to be done” obligation, thus re- quiring action or forbearance very much like legal rules. Second, the conditions under which 2 person may be held liable in law is often based on the moral idea of “blame” or “fault”. This ‘means that, “blameworthiness”, which is essentially a moral principle, must be established before a person is subject to legal sanctions. In this way, some have argued that law and morals, although distinguishable, morality is “secreted in the interstices” of the legal system to the extent that it is inseparable from it.'? Third, both moral and legal rules are conceived as binding independently of the consent of the individual bound and are often supported by serious social pressure for conform- ity. Fourth, moral rules and legal rules not only overlap sometimes, but the latter are based on the former. For example, murder is both illegal and immoral and the legal sanction reflects the moral repulsion felt by society when one person deprives another of his right to life. In spite of their similarities, morality and the law can clearly be distinguished from each other in many ways. First, legal rules are backed by formal and official state sanctions and procedures for enforcing them, whereas moral rules lack this and their enforcement is based on a more diffuse and generalised regime of “informal” sanctions. These informal sanctions range from a mere reminder to do the right thing to “social disapproval”, where, for example, neighbours shun a person whom they have discovered to be engaging in prostitution and vary in intensity from being ignored to total ostracism. Second, whilst one could easily ascertain the content of a legal rule from statutes or other documentary sources, the exact content of say the moral code of a community, is difficult to ascertain and the great diversity of the world’s communities renders consensus on moral beliefs impossible. Third, morality, unlike law, lacks a Legislature and courts to adjudicate on disputes. Fourth, new legal rules can be introduced and old ones changed or repealed by deliberate enactment. By contrast, moral rules or principles cannot be brought into being or changed or eliminated in this way. In fact, moral rules or principles acquire or lose their status by growing, being practised and decaying. Nevertheless, the enactment or repeal of laws is often one of the causes of a change or decay of some moral rules. So too can legal 11 For a fall discussion of this, see AB Edwards “The idea of law”, in WJ Hosten, AB Edwards, Francis Bosman and Joan Church, Iniroduction to South African law and legal theory, 2nd ed, Durban, Butterworths (1998), pp 4-9. 12 The word mores in a broad sense, includes things such as a community's common features : their habitual practices, folkways, conventions, etiquette and usages. 13. MDA Freeman, Lloyd's introduction to jurisprudence, (2008), op cit p 43.6 The Botswana Legal System enactments raise and transform certain moral rules into legal rules. Finally, law deals with and prescribes external conduct whereas morality deals with and prescribes internal conduct. Even ‘where the law purports to deal with the internal aspect of conduct, such as motive, it only con- cerns itself with the external manifestations of such conduct. For as Brian CJ famously said many centuries ago, “the thought of man is not triable, for the devil himself knoweth not the thought of man.”" The relationship between legal rules and moral rules can be crudely represented thus:'* = alll Legal rules e.g driving on the fet | ombalrofonieds prohibition of where'legal rules and fornication moral rules coincide ©.g murcer The shaded area represents the area of common ground where law and morality coincide and law enforces morality. The size of this shaded area is constantly changing as some previously moral rules are transformed into legal rules. Although society will stand to benefit if all moral rules were transformed into legal rules, there are a number of difficulties that will render this legislation of morality problematic. First, there is a problem with determining the exact nature and scope of a moral rule in any community. Besides this, the mere fact that many people condemn a certain practice, such as fornication, does not necessarily mean that they will, if given the chance, support a law making such a practice criminal. Second, rendering certain deviations from accepted morality illegal may create more problems than it actually solves. For example, the development of the Mafia phenomenon in the United States was the direct result of the unreasonable prohibition of the production of alcohol in the 1920s on the purely moral ground that it was wrong, Finally, if certain moral rules are transformed into crimes, the impos- sibility of enforcing them may bring the law into disrepute. For example, in many jurisdictions in the United States, adultery has been made a crime by statute but prosecutions are very rare because of the difficulties of detecting and proving this in court. 1.2.2 Law distinguished from customs, conventions and other social norms ‘The activities of man in society are not regulated and controlled solely by legal rules, although these remain the most important norms that hold society together. There are a variety of other instruments of social control in the form of customs, conventions and other social norms which must be distinguished from law. These exist in all societies, whether civilised or primitive. Ina sense, customs and conventions can be said to refer to generally accepted patterns of be- haviour that are recognised as binding on members of a particular group over many years of uniform observance. Examples of this include the wearing of a black tie or veil at funerals and queuing up for a bus. These are practices that owe their origins to habit and the desire for good and orderly behaviour in society. Customs and conventions, like law, have as their main goal the ensuring of orderly behaviour in society. There are however a number of differences. Unlike laws, they lack the element of 14 In ¥.B. 17 Edw. IV, | 15. This is adopted from John Farrar and Anthony Dugdale Jnireduction to legal method, London, Sweet and Maxwell (1990), p 8,Chapter 1: The meaning, functions and classification of law z compulsion and individuals are free to conform or not to conform. Those who fail to conform only run the risk of “informal sanctions”, the severity of which will vary depending upon the particular custom or convention violated and the strength of community feelings about this violation, No person is compelled to greet, to be polite or exude good manners, but defiance of these conventions exposes one to informal mechanisms of social control such as gossip, ridicule, humiliation and rejection. Fear of disapproval of one’s conduct from family, friends and neigh- bours may also be adequate to check against deviant behaviour. Law can also be distinguished from customs and conventions in that the former usually consists of explicit, positive rules that may be found in statutes, whereas the latier are non-positive, characteristically implicit and inarticulate and sometimes the object of debate and controversy. Where strict observance of rules of conventional behaviour is expected, this is referred to as etiquette. An example of this is the dress code specified for an official reception. A person who ignores this will not be admitted to the party. Other societal norms include usages and practices. These may be commercial usages or pro- fessional practices. These are not laws but are norms of good conduct that help to regulate conduct in society. Many legal rules have their material origins (either overtly or covertly) in customs, conventions and social norms. Thus, a custom may have been followed continuously for so long that it hardens into a legal custom. This entails official recognition accompanied by regulated coercion. Similar- ly, legal rules may eventually be formulated from commercial usages and professional practices. 1.3 Law and justice Cutting across the law and the other normative systems discussed above is the concept of justice. ‘Norms, whether legal, moral, ethical, customary or conventional, must be just. However, the concept of justice itself is quite complex and has been analysed differently since the time of ancient philosophers such as Aristotle and Plato to modem philosophers such as John Rawls," John Finnis'’ and HLA Hart.'® This is not surprising for in dealing with the issue of a just law, there are a number of awkward questions that need to be answered. For example; what is “just” or “unjust” law? Who determines whether any particular law is just or unjust?" Historically, justice was equated with virtue in ancient Greece or brotherly love in Christian doctrine. In modem times, the concept can be used in at least two senses. First, it may refer to the principle of legalism according to which law is a law. As such, it is not competent for anyone to challenge a law or its authority on any non-legal criterion. Anyone who wishes to do so, must seek a change of the law through the normal legislative process. Until this is done, the strict letter of the law, as contained in the Constitution”, legislation or case law, regardless of its social, economic or political context must be obeyed. For example, in Nazi Germany and apari- eid South Attica, the legalist principle applied strictly and it was the duty of judges to apply the Jaw regardless of how unjust or immoral it was. The second sense in which justice can be used is with reference to the principle of legality. This requires that laws should be fair and reasonable in themselves as well as in the manner in which they are interpreted and applied. Differentially punitive laws or laws that are unfair or arbitrary in their nature and operation will offend the principle of legality. The principle of legality is the legal ideal which requires that all laws should be clear, ascertainable and non-retrospective. It is closely linked to the concept of rule of law. 16 A theory of justice, Cambridge, Mass, Harvard University Press (1999). 17. Natural law and natural rights, Oxford, Clarendon Press (1980), pp 161-197. 18 The concept of the law, op cit, pp 153-160. 19. See A Allott, The limits of the law, op cit p 149. 20 Constitution of Botswana 1966.8 The Botswana Legal System Although there is much dispute about the actual scope of the concept of justice, the main divi- sions of justice are fairly uncontroversial. These are: (i) legal justice; (ii) distributive or social justice; (iii) corrective (rectificatory or remedial) justice; and (iv) natural justice.”! 1.3.1 Legal justice Legal justice is the strict and impartial application of the law, regardless of its consequences. For example, a stipulation in law that allows for offspring of male Batswana married to foreigners to acquire Botswana citizenship but not the offspring of female Batswana married to foreigners.” 1.3.2 Distributive or social justice Equality is a fundamental clement of the concept of justice and thus of distributive justice. Distributive justice is concerned generally with the problem of distributing resources, opportuni- ties, profits and advantages, roles and offices, responsibilities, taxes and burdens or in general, what HLA Hart has referred to as the “common stock” and the “incidents of communal enter- prise’ as a matter of right and on merit, not as a favour. The criteria for determining the “just” distribution of roles, opportunities and resources, remain controversial because there is no reason to assume that the lot of everybody in society will be enhanced by treating everybody identical- ly, Equality is therefore only a starting point. The reality is that the accumulation of capital and the resulting development that goes with it are only possible where there is unequal distribution of income. The suitable compromise that has worked well is that all persons are treated equally until some relevant considerations require that they be differentiated.” There is however no single criterion universally applicable for resolving the questions of dis- tribution. Ultimately, it will depend on the political and economic system that operates within the country. An example is the rules that determine the conditions for succession on intestacy. 1.3.3. Corrective (rectificatory or remedial) justice Corrective justice, or what is sometimes referred to as rectificatory or remedial justice, is con- cerned with those situations where the judge has to rectify or remedy inequalities which arise in dealings between individuals in society. These dealings may be either voluntary, such as a sale, hire, loan or other business transaction or involuntary, such as where one man steals from an- other or assaults him. In a voluntary transaction, such as a sale agreement between A and B, if B breaches the contract, then corrective justice will be attained when the judge awards B as dam- ages such an amount of money that will put him in the position he would have been in if the contract had been performed and not breached. In an involuntary situation such as a theft or assault, corrective justice will be attained when the accused person is tried, convicted and fined and/or sentenced t6 a term of imprisonment. 21 It is worth noting that Aristotle in his book, Evhies, Book V, mentions other divisions such as social or political justice and non-political justice, and natural and conventional justice, See further, John H Farrar and Anthony M Dugdale, Introduction to legal method, 3rd ed, Sweet and Maxwell, London (1990), pp 261-262. 22 See Attorney-General v Dow [1992] BLR 119 where the Court of Appeal considered this provision in the Citizenship Act as ultra vires the Constitution. 23. The concept of the law, op cit p 166. 24 See AB Edwards, “The idea of law”, op cit p 32.Chapter 1: The meaning, functions and classification of law 9 1.3.4 Natural justice® The rules of natural justice are minimum standards for making decisions imposed by the com- mon law. These were originally applied only to courts, but now extend to any person or body deciding issues affecting the rights or interests of others. They are essentially concerned with fairness and consist of a collection of procedural rules by which legal rules are to be considered and applied. The two main rules of natural justice are the audi alteram partem (literally, hear the other side) rule and the nemo judex in causa sua (literally, no one may be a judge in his own cause) rule. ‘The audi alteram partem rule, also known as the right to a fair hearing, basically requires that nobody should be penalised by a decision affecting his rights or legitimate expectations unless he has been given, firstly, notice of the case he has to meet and secondly, a fair opportunity to answer the case against him and put his own case. This does not necessarily mean that the individual is entitled to a decision in his favour but rather that he must be heard and given a chance to put his case. The foundations of this rule that has been applied in many cases in Botswana,” were laid down in Cooper v Wandsworth Board of Work,” where the Court quashed the decision of a local authority which exercised a statutory power to demolish a house without giving the owner notice or an opportunity to make representations on his own behalf on the ground that it had failed to observe a rule “of universal application and founded on the plainest principles of justice.” The Court also pointed out that it “invoked the justice of the common law to supply the omission of the legislature” which had failed to give the property ‘owner any right to be heard. In Khumalo v J & T Decorators (Pty) Lid, “the applicant was the developer of a property leased to him by the second respondent. On application by the respond- ent, the land tribunal granted an order which included a paragraph interdicting the applicant from continuing to develop the property until the order had been lifted. The applicant had received no prior notice of the proceedings and the order was granted in his absence. The appli- cant brought an urgent application for an order declaring that the offending paragraph be nulli- fied on the grounds that it had been granted erroneously. It was held, inter alia, that the applicant’s failure to be heard violated the principles of natural justice and was therefore fatal to the land tribunal's decision, which was set aside. The ngno judex in causa sua rule or rule against bias, has two main branches. The first re- quires that an adjudicator must not have any direct financial, proprietary or other interest in the outcome of the proceedings and secondly, that he must not be reasonably suspected or show a real likelihood of bias. This rule is applied strictly and no matter how small an adjudicator's interest or how unlikely it is to affect his judgment, he is disqualified from acting and the deei- sion in which he participated will be set aside.” It is not necessary to prove any actual bias — the likelihood of bias will suffice. In the famous words of Lord Hewart CJ, it is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen eo) to be done”. 1.4 The divisions of the law Law is usually divided into certain broad categories or divisions. These divisions both reflect the way the law has developed and the way it is studied. In law schools, law is studied in the form of 25 For a discussion of the concept in administrative law in Botswana, see Oagile Key Dingake, Administrative law in Botswana: Cases, Materials and Commentaries, Gaborone, Mmegi Publishing House (1996), pp 67-241. 26 Ibid. 27 (1863) 14 CN (NS) 180. 28 [2010] 1 BLR 391 29 See, for e.z., Dimes v Grand Junction Canal Proprietors (1852) 3 HLC 759. 30 Rv Sussex Justices, ex parte MeCarthy [1924] 1 KB 256, p 259.10 The Botswana Legal System a series of separate and distinct subjects, for example, law of contract, delict, company law, etc. This is somewhat artificial because in real life the legal problems that attorneys and judges are confronted with cannot always be neatly fitted into subject compartments. A single factual problem may cut across several different subject areas. In spite of the real possibilities for considerable overlap, it is still useful to understand and appreciate the different divisions into which the law is usually divided. Legal education programmes and law textbooks as well as law journals are all designed in accordance with the subject classification rather than the factual context in which legal problems arise. These divisions also provide a usefull indication of the links between the different branches of the law. The main divisions that will be discussed below are: national law and international law; Gi) common law and civil law; (iii) Taw and equity; (iv) private law and public law; (v) civil law and criminal law; (vi) common law and statutory law; and (vii) substantive law and adjectival or procedural law. 1.4.1 National law and international law ‘The distinction between national law and international law is of the most importance in law. National law or municipal law, as it is sometimes referred to, is that law that operates within the boundaries of each sovereign state and is interpreted and enforced by its courts. In a sense, all the other divisions of the law that we shall examine below fall within national law. International law or public international law or the law of nations, as it is sometimes referred to, can be defined as the body of rules and principles that are binding upon and regulate the relations between sovereign states. Although early international law concemed itself with states only, today international law also regulates the conduct of other international actors on the international stage, such as the United Nations and its specialised agencies. International law, which, as pointed out earlier, is also known as public international law, must however be distin. guished from private international law. The latter is part of national law and is the law that is applied by a judge when dealing with a case that contains a foreign element. For example, Mpho, a Motswana, goes to Harare in Zimbabwe and enters into a contract to buy a car from Neube, a Zimbabwean, It is agreed that the car is to be delivered in Gaborone in Botswana. If on delivery, Mpho discovers that the car is a wreck and sues Ncube before the Botswana courts, the judge must decide whether it is the law of contract of Zimbabwe, where the contract was entered into or the law of contract of Botswana, where the contract was supposed to be performed or some other law, that shall apply. The rules of private international law will assist the judge in determining the proper law to apply in resolving this case. 1.4.2. Common law and civil law The two phrases, “common law” and “civil law” will be used in different contexts to mean different things. In this particular context, the phrase common law is used to refer to the English common law legal system together with those countries whose legal systems are derived from it, such as the United States, Canada, Nigeria, Ghana, Kenya, New Zealand and Australia, By contrast, civil law is used to refer to the legal systems of most of the states of Western Europe such as Germany, France and Italy and other countries that derived their legal system from them, such as Brazil, Argentina, Gabon, and Senegal. Although we shall explore in some depth the differences between these two legal systems in the next chapter, it will suffice to note that the origins of both systems can be traced to Roman law but whilst modem European systems still show this heritage to a marked degree, Roman law has left very little lasting impact on theChapter 1: The meaning, functions and classification of law ul common law. There are other legal systems, such as the socialist legal system and the Muslim legal system, which we shall distinguish from those two systems. 1.4.3. Law and equity The distinction between law and equity can be traced to the development of the English legal system, but as John H Farrar and Anthony M Dugdale point out, this distinction can now be regarded as part of the legal development of all progressive societies.”' At a general and philo- sophiical level, law can be regarded as a body of rules and principles which by its nature deals with classes or sets of persons and events rather than individuals and individual instances.” Because of this, it sometimes fails to achieve adequate justice in a particular case. Equity then acts as a supplementary system that uses considerations of morality to cater for the exigencies of particular cases. In the context of English law, the distinction between law and equity goes right back to the Norman conquest of England in 1066. At the time, there was no system of law common to the whole country. One of the main achievements of the Norman kings was the introduction of strong and centralised system of administration in the course of which an English common law, that is, a law common to the whole country, was developed from the various local customs. This law was administered by royal judges in courts that came to be known as common law courts. With time, the law administered by these common law courts became too rigid and unsatisfacto- ry because of procedural technicalities. For example, the writ system, which denied litigants any remedy in the absence of @ writ, although mitigated by the use of fictions, still caused hardship. ‘The remedies that could be obtained from the common law courts were also inadequate. For example, they could only award damages to the plaintiff. The practice grew for poor or disgrun- tled litigants to petition the king for redress. These petitions were handled by his principal civil minister, the Chancellor, who was usually a cleric. He disregarded the formalities and technicali- ties of the common law judges and acted on the basis of reason and conscience as well as what he considered fair and just in each case rather than on substantive rules. The principles that emerged became known as equity and the Court of Chancery became more formalised. The principles of equity that were developed by the Court of Chancery were not an alternative to but rather added to and complemented the common law where it was defective. Equity brought about three main changes to the common law. It introduced new rights, such as the trust, and new procedures as well as new remedies, such as specific performance, the injunction, rescission and rectification. It also developed a number of maxims, such as, equality is equity, he who comes to equity must come with clean hands, and he who secks equity must do equity. Since the Judicature Acts of 1873-1875, the courts of equity and the common law courts have been merged. A single court system now applies both equity and common law but where there is a conflict between the principles of both systems, the principles of equity will prevail. The distinction between law and equity, although mainly of historical significance, is still important today. For example, in spite of the merger of courts, the Chancery Division of the High Court in England today deals exclusively with matters that were previously handled by the Chancery Courts. Besides this, in many areas of the law, the principles of equity and the common law still co-exist somewhat uneasily with neither being subordinated entirely to the other. A typical example of this is in the area of the effects of mistake in English law of contract. 1.4.4 Private law and public law ‘The distinction between private law and public law is inherited from Roman law and survives only in the civil law system, According to it, private law is the law which regulates the relationship between citizens whilst public law regulates the relationship between citizens and the state. In 31. Introduction to legal method, op cit p 34. 32. See further, ‘bid.12 The Botswana Legal System the civilian systems where this distinction operates, a separate body of laws as well as a separate system of courts is provided for determining disputes between the state and its citizens from that which deal with disputes between citizens. In this system, the subjects that are classified under public law include constitutional law, administrative law, civil liberties and public finance, whilst the subjects that are classified under private law include the law of obligations, labour law, family law, law of property and law of succession. The Botswana legal system, influenced in this respect by English law, does not draw a distine- tion between public law and private law. Thus, disputes between citizens as well as disputes between the state and citizens are handled by the same courts and subject to the same legal principles. However, since the 1980s in England, some distinction of sorts, based not on differ- ences in courts or substantive law but rather on procedural matters, is emerging between the two.” The distinction, which is quite difficult to make, seems to be between the enforcement of public rights and private rights. Two general points can be noted where the distinction is made. First, a court which is considering a challenge which is governed by public law, for eXample, the review of an administrative decision, will only supervise the manner in which the decision was arrived at rather than the merits of the decision. Provided the decision making process complies with the law, the actual decision itself is not one that the court will interfere with. Second, there are certain procedural safeguards that apply only to public law cases. One of these is that no private individual has a right to challenge a matter of public law without first making a prelimi- nary application to the court, asking for leave to make a full application. This is necessary to shield public decision-makers from the constant risk of petty, vexatious and frivolous challenges made by people wanting to use the judicial process for political ends. The main distinction between public law and private law in the Botswana legal system is that public law rights and duties should be enforced by the process of judicial review and not by an ordinary civil action. Botswana law, like English law, is a long way from the substantive public/ private law division that is found in the modern civilian systems in Europe and elsewhere 1.4.5 Civil law and criminal law Civil law in this context refers, not to the civil law legal system that we noted above as applied in continental Europe, but rather to the law that defines the rights and duties of individuals in society amongst each other. Criminal law on the other hand deals with certain wrongs known as offences which are punishable by the state even though the actual victim was a private individual. The two systems overlap. For example, a wrong, such as an assault, is classified both as a erime punishable by the state and a civil wrong for which the victim is entitled to compensation. Never- theless, civil law and criminal law can be distinguished from each other in a number of ways. First, one of the main differences is the basic terminology used. A typical civil case will be called an action, and will involve proof of liability. It may be brought in various ways, such as by way of an application ot a petition. A criminal case on the other hand, is called a prosecution and is concerned with proving guilt. In a typical civil case, a claimant sues a defendant or makes an application for a civil order. In a criminal case, a prosecutor prosecutes the other party, usually called @ defendant or an accused.** Second, almost all criminal proceedings are instituted by or on behalf of the State by the Direc- tor of Public Prosecutions, and once commenced, cannot be dropped or discontinued without the leave of the court unless the Director of Public Prosecutions stops further proceedings by 33 See Cocks v Thanet District Council [1983] 2 AC 286 and also O'Reilly v Mackman [1983] 2 AC 237. 34 It's usually reported in the law reports in the form of Molutsi v Tebego, with Molutsi being the surname of the claimant and Tebego the sumame of the defendant. 35. It is now reported as Director of Public Prosecutions v Maswabi but before the establishment of the Director of Public Prosecutions’ office, as The State v Maswabi. This reflects the fact that the Director of Public Prosecutions represents the StateChapter 1: The meaning, functions and classification of law 13 36 entering a nolle prosequi® Civil proceedings are brought by individuals who are free in most cases to discontinue proceedings either with or without a settlement with the other side. Third, criminal proceedings are instituted by the state with the primary objective of suppress- ing crimes and punishing crime. The punishment may take the form of a fine and/or a term of, imprisonment or even the imposition of capital punishment. Although criminal law also protects persons and their property, the overriding interest is the maintenance of public peace and tran- quillity. Civil proceedings by contrast are not concerned with punishing the wrongdoer but are rather principally concerned with compensating the plaintiff for losses caused by the wrongful act or omission of the defendant. In family law, the various types of relief that may be claimed include dissolution and annulment of marriage, financial provision for a spouse and custody of children. In spite of these differences, it should be noted that the range of powers available to courts exercising criminal jurisdiction is progressively being increased beyond punitive reme- dies. Some criminal courts have jurisdiction to place an accused on probation, which is intended to help rehabilitate the offender, especially young delinquents, rather than punish him. There are circumstances where a criminal court can compensate the victim of a crime at the same time as it sentences the offender. Similarly, in exceptional circumstances, for example, some instances of defamation, a civil court may award damages over and above the sum required to compensate the victim, with the intention of punishing the wrongdoer. standards of proof differ in civil and criminal proceedings. The facts necessary to I liability need to be proved only on the balance of probabilities or preponderance of probabilities, whilst the facts needed to secure a conviction in a criminal case must be estab- lished beyond reasonable doubt. The differences in standard of proof, with a more stringent standard being required to secure a conviction in criminal proceedings, are due to the severe nature of criminal sanctions. The rules are therefore weighted in favour of the accused person to protect him against the danger of wrongfiil conviction, loss of livelihood and liberty. Finally, it is worth noting generally that there are various other distinctions between civil law and criminal law cases that emerge in areas of procedure and evidence, the liability as to costs and the availability of legal aid. 1.4.6 Common law and statutory law In Botswana, the phrase common law, when used in contrast to statutory law or legislation, generally refers to both the English common law and Roman-Dutch law received during the colonial period and still applicable today, as well as the law contained in the decisions of Bo tswana courts since independence. Statutory law or legislation on the other hand, refers to all the laws enacted by Parliament and “any law of an authority formerly exercising the authority to make laws” in Botswana,” as well as subsidiary legislation made under the authority of Parliament. 1.4.7 Substantive law and adjectival or procedural law Substantive law deals with those areas of the law which determine the actual rights and duties of individuals. These spell out what individuals may do or not do. The scope of substantive law is much broader than that of adjectival or procedural law and includes subjects such as the law of contract, deliet, labour law, constitutional law, etc. By contrast, adjectival or procedural law deals with and lays down the ways and means by which substantive law can be enforced. It provides rules which, for example, determine what evidence may be admitted by a court and the process to be followed for issuing summons. The three main subjects that make up adjectival law are criminal procedure, civil procedure and the law of evidence. However, the distinction between substantive law and adjectival law is not exactly clear cut ot free from controversy 36 See ch 10 infra. 37 Sees 49 of the Interpretation Act 1984.14 The Botswana Legal System because there are certain procedural rules that to the extent that they determine the substantive Tights and duties of litigants may be appropriately classified as substantive law." 1.5 The functions of the law As to the question, “what is law?” many legal philosophers have over the years debated the question, what are the functions of the law, without coming up with any definitive answer. This is partly explained by the divergent views taken over the definition of the nature and concept of law as well as the fact that the fumctions that law performs may depend upon which law operates at a particular time and place. Be that as it may, the main functions that may be attributed to the law can be summarised under the following heads: (i) the maintenance of social order; (ii) the settlement of disputes; (ii) the regulation of economic activities; (iv) the protection of property rights; (¥) the protection of interests; (vi) the regulation of the principal organs of power; and (vii) other functions. Whilst it is clear that nobody can pretend that a comprehensive list of the functions that law Performs in society can be given, two points should be borne in mind when reading through the main functions summarised below. Firs, the extent to which these functions are true in any Society are contingent on the stage of the society's development and its political and economic ideology. The functions of law in a society may change in accordance with its changing social and political ideas and ideals. Second, the functions are not always consistent with each other For example, the preservation of social order may occasionally conflict with the function of Protecting civil liberties. Similarly, the role of law in advancing equality or social justice may clash with its role in supporting the current economic and social order, 15.1 The maintenance of social order The maintenance of social order and public order is arguably the primary funtion of law. Historically, law has evolved as an alfemative to private feuds and vengeance and as a supple- tment to the informal social processes through which individuals or groups deal with disputes Law however has the advantage over both feuds and informal processes in that it provides rationalised and conclusive method for setling disputes. This is done in two ways, First, through the creation of legal institutions which are responsible for defining deviant behaviour. These institutions determine the boundaries of acceptable behaviour and prescribe sanctions for any breaches. Second, through legal rules, a legal system is created which carries out many functions of social control. This usually consists of officials such as police who arrest burglars, proseeu~ tors who prosecute them, judges who convict and sentence them and prison guards who watch over them. Law is also instrumental in the preservation of public order through the protection of civil liberties and human rights."” However, the protection of these rights may not always be con- sistent with the preservation of public order. There are occasions when the preservation of public order may resultin the imposition of restrictions on civil liberties, An example of this is the restrictions that may be placed on freedom of speech and freedom of movement during a state of emergency. In highly repressive societies, the function of preserving public order is often used as a pretext to abuse civil liberties and other fundamental freedoms 35 Seo EK Quansah, Introduction to the Botswana legal system, 3rd ed, Gaborone, Pula Press (2001), p 15, 39 Sce ss 3-19 of the Constitution of Botswana LN 83 of 1966,Chapter 1: The meaning, functions and classification of taw 15 Arguably, the best way for law to preserve social order is where there are specific laws de- signed to promote equality of opportunity, for example, in the provision of education, health care and work opportunity on one hand, and combating discrimination on grounds of gender, ethnicity, race, disability, etc. on the other hand. Besides specific anti-discrimination legislation, new policies could be developed that are directed towards devising social, welfare and educa- tional policies to correct and rectify some of the inherent inequalities that exist in society. Examples of these are laws promoting free education and free medical care. Ultimately, the extent to which law performs the function of preserving social and public or der will depend on the particular society. Even then, it must be noted that the maintenance of social and public order is not exclusively a task for the law. It does not follow that if laws were suddenly removed or relaxed, society will immediately plunge into chaos. This is unlikely to happen because although law and legal institutions remain the key instrument of social conirol, there are others too. These include political institutions (for example, political parties), economic and commercial institutions (for example, trade union organisations and employers’ organisations), religious institutions, cultural institutions and even the influence at the micro level, of family, friends and work colleagues. 1.5.2 The settlement of disputes Every social group contains within it the elements and conditions in which disputes will arise. In fact, disputes are an inevitable part of life. Disputes range from small family rows to arguments between friends during a social occasion to serious confrontations at work as well as disputes between corporations and the state. Organised communities and even some institutions, such as corporations, may provide some informal mechanisms for settling disputes. The law in general and the legal system in particular, provides a comprehensive framework of legal rules and legal institutions both for preventing as well as settling disputes. In spite of the existence of informal mechanisms, whether within the family or other social groups setting or within corporations that try to prevent and settle disputes, the law provides, through the law courts and other tribunals, the final and authoritative means for settling all disputes that arise in society. 1.5.3 The regulation of economic activities A great deal of modern law-making activity is focused on the creation of a stable regulatory framework within which business activities may flourish. In this era of globalisation and liberal isation, laws are needed not only to ensure free and fair competition but also to check against fraud and abuse of trust. Specific areas of economic activities are sometimes subject to detailed regulation. For example, there are laws that regulate the activities of certain professional organi- sations such as attorneys, doctors, architects, nurses and engineers.” Housing is regulated through housing laws and land use through planning law. The laws that regulate industry also attempt to protect the environment. Law therefore sometimes plays a contradictory role. It is used to facilitate economic activities whilst at the same time it tries to limit any excesses that may result from such activities, ‘The exact nature of the different laws that regulate economic activities varies from country to country and reflects not only the country’s level of economic and social development but also its ‘economic ideology. The laws that regulate economic activities in North Korea, one of the last bastions of communism, will definitely be different from the laws that regulate economic activi- ties in capitalist-orientated Botswana of today. 1.5.4 The protection of property rights One of the very important functions of the law is that of determining the conditions for the recognition and protection of rights in property, whether in land or other forms of security. 40 For e.g., the legal profession in Botswana is regulated by the Legal Practitioners Act of 1996.16 The Botswana Legal System Without clearly defined rules that define the rights of ownership of property and the procedure for the transfer of such rights from one person to another, potential investors, especially from abroad, would not invest in the country. As with the regulation of economic activities, the exact nature and scope of the legal rules that regulate matters of ownership, possession, leases, mort- gages, contracts and trusts, will depend both on the country’s economic and political ideological leanings as well as its level of development. 1.5.5 The protection of interests Law protects both the interests of the State and those of its citizens. It specifies the circumstane- es when there will be liability for an unlawful or wrongfial act or omission that infringes the individual’s or the State’s interest. State interest is usually protected through the criminal law, even where the actual victim of the act or omission is a private individual. The reason for this is that the State has an interest in the preservation of public order and tranquillity. Private interest is protected by the criminal law as well as a number of other laws that regulate human relationships in society. The conditions and other incidents of marriage are defined by law." The law also provides a framework for the distribution of assets on the breakdown of marriage and the treatment of children. The law of delict provides the rules for awarding damag- es to people who suffer loss or injury as a result of the wrongful acts or omissions of others or whose property, reputation or other interest is damaged. The law of contract provides the rules that ensure that mutual promises freely exchanged by parties are respected, failing which dam- ages are awarded to compensate the innocent party, The law also protects individual interest against encroachment by the state. Thus in Aforney-General v Dow™ the Court of Appeal upheld the constitutional right ofa woman not to be discriminated against. The State will also be prevented from expropriating the property of an individual without the payment of compensation as provided for under the law. 1.5.6 The regulation of the principal organs of power Another very important function of law is to regulate the principal organs of power. As William Pitt, an English politician once put it, “where laws end, tyrannies begin”.** Legal rules have been the most effective means of regulating and controlling the actions of government. These legal rules usually attempt to prevent arbitrary rule or the abuse of powers by, for example, defining the powers of the different organs of government and administrative agencies and providing rules for succession to power. The main instrument that contains these rules is the Constitution, but other rules defining the functions of government officials such as ministers, civil servants and the police are usually contained in Acts of Parliament and other subsidiary legislation. 1.5.7 Other functions As pointed out earlier — and this point must be repeated for emphasis ~ no complete list of the various functions of the law can be given. There are many other important functions that need to be mentioned. One of these is that law communicates and reinforces social values. In this re- spect, it can be said that law reinforces other normative values such as morality. conventions, customs and other societal norms which are all designed to maintain social order in society. Law also plays an educative or ideological function."* The reputation that Botswana has earned for a 41. See EK Quansah introduction to family law in Botswana, 3rd ed, Gaborone, Pula Press (2001). 42, [1992] BLR 119. 43. Sce http://www dissentees.com/shirtlistsp?ofTset=60. 44. See Martin Partington An introduction to the English legal system Oxford, Oxford University P: pal