The Botswana Legał System

Transcription

1 The Botswana Legał System Charles M Fombad Licence en Droit (LLB) (University ofyaounde) LLM, PhD (University oflondon) Professor, University of Botswana Emmanuel K Quansah LLB, LLM(University oflondon) LLD (Unisa) Associate Professor, University of Botswana LexisNexis DURBAN

2 Contents Preface v Part I General introduction Chapter 1 The meaning, functions and classification of law 1.1 What is law? Law distinguished from other normative systems Law distinguished from morality Law distinguished from customs, conventions and other social norms Law and justice Legał justice Distributive or social justice Corrective (rectificatory or remedial) justice Natural justice The divisions of the law National law and international law Common law and civil law Law and eąuity Private law and public law Civil law and criminal law Common law and statutory law Substantive law and adjectival or procedural law The functions of the law The maintenance of social order The settlement of disputes The regulation of economic activities The protection of property rights The protection of interests The regulation of the principal organs of power Other functions The limitations on the effectiveness of the law 16 Chapter 2 Introduction to the major legał systems in the world 2.1 Introduction The common law legał system History and development of English law The development of English law and the common law courts The development of equity 23 vii

3 viii The Botswana Legał System The sources of English law Common law Eąuity Legislation Custom Law merchant Canon law Roman law Law reports and judicial precedents Textbooks European Community and European Union law European Convention on Human Rights The structure of English courts The European Court of Justice and the European Court of Human Rights The House of Lords The Court of Appeal The High Court The Crown Court The Employment Appeal Tribunal Magistrates' courts Youth courts and youth justice Family courts County courts Coroners' court The Judicial Committee of the Privy Council Courts of particular jurisdiction Courts-martial Ecclesiastical courts Restrictive practices court Naval courts Court of chivalry Court of protection The personnel of the law in the English legał system Thejudges The law officers 'Z^Z'IZZZZZ The legał profession 2.3 The civil law or Romano-Germanic legał system Origins The main characteristics of the civil law system An illustration of the dvii law legał system using the French legał system The sources of French law Legislation Case law (la jurisprudence) Legał writings (la doctrine) Custom The structure of French courts The generał principles that govern the structure of French courts The actual structure of French courts ' 3 ^ 3y

4 Contents ix Legał personnel in France Judges The legał profession The socialist legał system Religious legał systems - The Muslim legał system The structure of Muslim law The sources of Muslim law The Koran The Sunna The Ijma The kiyas (or qiyas) or analogical reasoning Muslim law today African law Some generał featuresof African law Sources of African law Custom Legislation Precedents Expert opinions Other sources The future of African law Mixed or hybrid legał systems 48 Part II The development of the Botswana legał system and the sources of law Chapter 3 The historical origins and development of the legał system 3.1 The pre-colonial period The colonial period The declaration of the protectorate Genesis of the modern legał system - The reception of the English common law and Roman-Dutch law The co-existence of received laws with custotnary law The post-independence period The hybrid and dual legał order The dynamics of legał reforms 60 Chapter 4 The sources of law applicable in Botswana 4.1 Legislation Forms of legislation Acts of Parliament Delegated or subsidiary legislation Autonomie legislation Purposes of legislation Common law The meanings of the expression "common law" The content of Botswana common law Judicial precedent Judicial precedent as a source of Botswana law 72

5 The Botswana Legał System The generał naturę of the doctrine of binding precedent The binding elements in precedents The ratio decidendi The obiter dicta Precedents that are not binding Precedents that constitute persuasive authority Precedents that have been overruled Precedents that can be distinguished Precedents establishedper incuriam The operation of the doctrine of binding precedent within the hierarchy of courts in Botswana The Court of Appeal The High Court Magistrates' courts Customary courts Customary law The meaning of customary law The ascertainment of customary law The conditions for the recognition and enforcement of customary law Conflict of customary laws Lawreports Legał writings 89 Part III The administration of justice Chapter 5 The courts of generał jurisdiction 5.1 Introduction The classification of courts Superior courts and inferior or subordinate courts Courts of record and courts not of record Civil courts and criminal courts Trial courts and appellate courts Courts and tribunals Courts of generał jurisdiction and courts of special jurisdiction The structure of courts The applicability of certain generał principles The Court of Appeal Composition Jurisdiction Appeals as of right Appeals by leave Appeals by the prosecution in criminal cases Powers of the Court of Appeal in criminal cases The impact of the Court of Appeal on the legał system The High Court Composition Jurisdiction Powers of the court when hearing appeals Magistrates' courts Regional Magistrate 108

6 Contents xi Civil jurisdiction Criminal jurisdiction Chief Magistrate Civil jurisdiction Criminal jurisdiction Principal Magistrate Civil jurisdiction Criminal jurisdiction Senior Magistrate Civil jurisdiction Criminal jurisdiction Magistrate Grade Civil jurisdiction Criminal jurisdiction Magistrate Grade II Civil jurisdiction Criminal jurisdiction Magistrate Grade III Matters excluded from the jurisdiction of magistrates' courts Customary courts Classification of customary courts Informal or unofficial customary courts Formal or official customary courts Jurisdiction Civil jurisdiction Criminal jurisdiction Appeals Control and supervision of customary courts Supervision by the Minister and his appointees Supervisory powers of chiefs The revisory powers of magistrates' courts and Customary Courts of Appeal Supervisory powers of the High Court 118 Chapter 6 The courts of special jurisdiction 6.1 The industrial court Composition Jurisdiction The juvenile court Composition Jurisdiction The court-martial Composition Jurisdiction Land tribunal Composition Jurisdiction 126 Chapter 7 Judges 7.1 Appointment 129

7 The Botswana Legał System 7.2 Security of judicial office Tenure Discipline and removal from office Due process of removal and discipline Judicial independence Judicial immunity The judicial function Extra-judicial functions Administrative functions Contempt of court Criminal contempt of court Civil contempt of court 142 Chapter 8 Magistrates and members of customary courts 8.1 Appointment Security of judicial office Tenure Discipline and removal Due process of discipline and removal Judicial independence Judicial immunity Contempt of court 149 Chapter 9 The Attorney-General 9.1 Appointment Security of tenure Constitutional status Functions Civil Litigation Division Legislative Drafting Division International and Commercial Division Departmental Management Division 153 Chapter 10 The Director of Public Prosecution 10.1 Appointment Security of tenure Constitutional status Functions 156 Chapter 11 The legał profession 11.1 Legał education Admission to practise Admission and enrolment of citizens Pupillage Admission and enrolment of Commonwealth citizens Admission and enrolment of non-citizens Admission of foreign advocates 169

8 Contents xiii 11.3 Organisation of the profession Attorneys Advocates The Law Society Liabilities of legał practitioners Liability for professional misconduct and other offences crcated under the Act Liability as officers of the court Civil liability The Fidelity Guarantee Fund Remuneration The role of legał practitioners in society 180 Part IV The enactment and interpretation of statutes Chapter 12 The enactment of statutes 12.1 The pre-legislative stage The sources of legislation The consultative process The role of the Cabinet The drafting process The legislative stage The first reading The second reading Proceedings before the Committee of the Whole House and a Select Committee The third reading Amendments to the Constitution Presidential assent Conclusion 193 Chapter 13 The interpretation of statutes 13.1 The different parts of a statute The enacting parts of a statute The interpretation or definition sections Provisos Savings The other parts of a statute The title Thepreamble Marginal notes or side notes Headings Schedules Punctuation The generał rules of statutory interpretation The literał rule The golden rule The mischief rule Presumptions The presumption that the legislature did not intend to be unreasonable or to cause injustice 210

9 xiv The Botswana Legał System The presumption that the legislature did not intend to allow for ineąuality and partiality of treatment The presumption that the legislature did not intend to deprive an individual of his vested rights The presumption that taxation statutes should be strictly interpreted in favour of the taxpayer The presumption in favour of the strict interpretation of penal statutes The presumption that statutes should be interpreted in favour of individual liberty The presumption that the accused must have committed an act with mens rea to be convicted of a statutory offence The presumption that the legislature did not intend to alter the existing law morę than is necessary The presumption against interpreting statutes in such a way as to oust or restrict the jurisdiction of the superior courts The presumption against the interpretation of statutes in such a way that they operate retrospectively The presumption against interpreting statutes in such a way as to violate a rule of international law The presumption that a reference in a statute to any action or conduct is intended to be a reference to lawful action or conduct The presumption that the same words in the same statute have the same meaning Maxims The ejusdem generis rule The expressio unius, exclusio alterius rule The cessante ratione legis cessat ipsa lex rule The noscitur a sociis rule Statutes in pari materia The rule that a later law repeals an earlier law that is inconsistent with the later law The rule that a passage is best interpreted by reference to what precedes and what follows it 232 Part Y Some fundamental legał skills Chapter 14 Elements of good examination practices and skills 14.1 Preliminary matters Introduction Types of law examination ąuestions The importance of looking at past examination ąuestions General advice on answering examination ąuestions Before embarking on answering examination ąuestions Reading, understanding and selecting ąuestions Understanding certain key words in examination ąuestions An outline answer or plan The presentation of the answer The structure of a good answer Other important issues of content and presentation The problem of avoiding irrelevancy 241

10 Contents xv 14.3 How to approach problem ąuestions Identification of legał issues raised in the ąuestion Statement of law relating to the legał issues disclosed by the facts Relating the law to the factual situation disclosed by the facts Suggesting the solution to the problems raised and the conseąuences that follow How to approach essay ąuestions 244 Chapter 15 Introduction to legał writing - Writing a research paper 15.1 Some preliminary observations Selection of a topie A checklist of possible topie sources Assessing the feasibility and practicability of the topies The role of staff members, potential supervisors and the subject librarian Researching the topie Literaturę search Preparing a working bibliography Effective note-taking The skeleton outline or plan Writing the paper The structure of the paper Drafting, editing and proofreading the paper The importance of expressing yourself clearly The use of footnotes/endnotes Conventions in footnoting Signals used in footnotes Some generał matters of form Headings Use of active and passive voice Avoidance of lazy writing Variation in writing style Consistency in spelling Example of a format for the structure and presentation of a research paper Preliminaries The title page Abstract Acknowledgements Table of contents Thetext The introduction The main body of the paper The conclusion Reference materiał 261 Bibliography 263 Table of cases 269 Table of statutes 277 Index 285