CHAPTER 04:05
CUSTOMARY COURTS

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

 

 

   1.   Short title

 

   2.   Interpretation

 

   3.   Application of the Act

 

   4.   Appointment and functions of the Director of Tribal Administration

 

   5.   Deputy Director of Tribal Administration

 

   6.   Assistant Directors of Tribal Administration

 

   6A.   Court bailiff

 

   7.   Establishment and recognition of customary courts

 

   8.   Constitution of courts

 

   9.   Suspension and dismissal of members

 

   10.   Sessions

 

   11.   Civil jurisdiction

 

   12.   Criminal jurisdiction

 

   13.   Cases excluded from the ordinary jurisdiction of customary courts

 

   14.   Personal interest

 

   15.   Laws to be administered

 

   16.   Minister may empower customary courts to enforce specified laws

 

   17.   Recognizance

 

   18.   Punishments

 

   19.   Binding over

 

   20.   Discharge without proceeding to conviction

 

   21.   Rules of procedure to be observed

 

   22.   When execution of sentence shall be suspended

 

   23.   Imprisonment

 

   24.   Suspended sentences

 

   25.   Recovery of fines, damages or other money penalties

 

   26.   Part of fine as compensation

 

   27.   Reimbursement of messengers' fees

 

   28.   Contempt of court

 

   29.   Power to summon persons

 

   30.   Practice and procedure

 

   31.   Reports of cases to be submitted to the Director of Tribal Administration or administrative officer

 

   32.   Right of audience

 

   33.   Adjudication without authority

 

   34.   Members of customary courts taking rewards

 

   35.   Taking reward for influencing customary courts

 

   36.   Penalty for false evidence

 

   37.   Transfer of cases

 

   38.   Procedure on transfer from customary court to magistrate's court

 

   39.   Power to review cases

 

   40.   Supervisory powers by Kgosi

 

   41.   Customary courts of appeal

 

   41A.    Constitution of customary court of appeal

 

   42.   Appeals

 

   43.   Appeals out of time

 

   44.   Power of appeal

 

   45.   Power of customary court of review as of course

 

   46.   Execution of orders of High Court or customary courts

 

   47.   Indemnity of officers acting judicially for official acts done in good faith, and of officers executing warrants and orders

 

   48.   Court of appeal

 

   49.   Power to make rules

 

   50.   Laws inapplicable to certain proceedings under this Act

 

 

Proc. 19, 1961,
HMC Order 1, 1963,
L.N. 84, 1966,
Act 57, 1968,
Act 6, 1972,
S.I. 71, 1975,
Act 2, 1977,
S.I. 12, 1977,
Act 25, 1986,
Act 13, 1997,
Act 1, 2002,
Act 7, 2005,
Act 1, 2006,
Act 22, 2013
S. I. 26, 2014.

An Act to consolidate and amend the law relating to Customary Courts.

 

1.   Short title

   This Act may be cited as the Customary Courts Act.

 

2.   Interpretation

   (1) In this Act, unless the context otherwise requires-

    "bailiff" means a court bailiff appointed under section 6A;

   "customary court" means-

 

   (a)   a lower customary court; or

 

   (b)   a higher customary court,

 

      established or recognized under the provisions of this Act;

   "Customary court of appeal" means a court established under section 41;

   "customary law" means, in relation to any particular tribe or tribal community, the customary law of that tribe or tribal community so far as it is not incompatible with the provisions of any written law or contrary to morality, humanity or natural justice;

   "higher customary court" means a court that is presided over by a-

 

   (a)   Kgosi;

 

   (b)   Mothus Kgosi;

 

   (c)   Moemela Kgosi;

 

   (d)   Court President; or

 

   (e)   Deputy Court President;

   "law of Botswana" means the common law and statute law from time to time in force in Botswana but does not include customary law;

    "lower customary court" means a court that is presided over by a Kgosana; and

   "member" means a person who presides over a customary court, or customary court of appeal;

   "tribal community" means any community which is living outside a tribal territory but is organized in a tribal manner;

   "tribesman" means any member of a tribe or tribal community of Botswana or of any other country in Africa prescribed by the Minister by order in the Gazette for the purposes of this Act.

   (2) For the purposes of this Act a person who has at any time claimed to be a tribesman for the purpose of enjoying any right or privilege thereof shall be deemed to be a tribesman unless it is proved to the contrary.

 

3.   Application of the Act

   The provisions of this Act shall not extend to informal proceedings of an arbitral nature before a body (not established or recognized as a customary court under this Act) constituted under customary law, where such body does not purport to exercise any power to enforce its decisions or compel attendance before it.

 

4.   Appointment and functions of the Director of Tribal Administration

   (1) The Minister may, by notice in the Gazette, appoint an officer in the public service to be Director of Tribal Administration for the purposes of this Act.

   (2) The functions of the Director of Tribal Administration shall include-

 

   (a)   the advising of the Minister in respect of the constitution, jurisdiction and membership of customary courts;

 

   (b)   subject to the general and special directions of the Minister, the guidance and supervision of customary courts;

 

   (c)   such other powers and duties as may from time to time be assigned to him by the Minister.

 

5.   Deputy Director of Tribal Administration

   (1) The Minister may by notice published in the Gazette appoint an officer in the public service to be Deputy Director of Tribal Administration.

   (2) The Deputy Director of Tribal Administration shall-

 

   (a)   act as the Director of Tribal Administration when the latter is unable to carry out his duties or perform his functions under this Act; and

 

   (b)   discharge such duties, under this Act, as the Director may from time to time delegate.

 

6.   Assistant Directors of Tribal Administration

   (1) The Minister may, by notice in the Gazette, appoint officers in the public service to be Assistant Directors of Tribal Administration for the purposes of this Act.

   (2) An Assistant Director of Tribal Administration shall discharge such of the functions of the Director of Tribal Administration under this Act as the Director of Tribal Administration may, from time to time by writing under his hand, direct, and references in this Act to the Director of Tribal Administration shall be construed to include an Assistant Director of Tribal Administration when acting in accordance with such direction.

 

6A      Court bailiff

   (1) The Director of Tribal Administration shall appoint in accordance with the laws governing the public service, such bailiffs and assistant bailiffs as may be necessary to perform duties under this Act.

   (2) A bailiff and assistant bailiff shall-

 

   (a)   serve and execute any summons, subpoena, warrant or other document issued by the customary court or customary court of appeal;

 

   (b)   administer any corporal punishment imposed by the customary court or customary court of appeal; and

 

   (c)   carry out any other lawful duty as may be assigned to him by a member.

 

7.   Establishment and recognition of customary courts

   (1) Every Kgosi may submit for the consideration of the Minister recommendations for the recognition, establishment, abolition or variation of the jurisdiction of the customary courts within his area.

   (2) The Minister may by warrant under his hand, recognize or establish such customary courts as he thinks fit, and shall define in each warrant the jurisdiction as to causes of action and the local limits of jurisdiction to be enjoyed by that court.

   (3) The Minister may, by Order published in the Gazette, suspend, cancel or vary any warrant issued under subsection (2).

   (4) The Minister shall, by Order published in the Gazette, publish a summary of every warrant issued under subsection (2).

 

8.   Constitution of courts

   (1) Subject to the provisions of subsection (2), a customary court shall be constituted in accordance with customary law.

   (2) Where the Minister thinks fit, he may, in the warrant establishing or recognizing the court, prescribe the constitution of any customary court, the order of precedence among the members, or powers and duties of any persons acting as assessors thereto.

 

9.   Suspension and dismissal of members

   (1) The Minister may dismiss or suspend for any period he may deem fit any member who appears to have abused his power or is incapable of exercising the same justly, or for any other sufficient reason, after affording such a member an opportunity to be heard.

   (2) On such dismissal, or for the period of his suspension, the member shall be disqualified from exercising any powers or jurisdiction as a member of the court unless he is expressly reinstated by the Minister.

 

10.   Sessions

   A customary court shall hold sessions at such times and places as may be necessary for the convenient and speedy despatch of the business of the court.

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