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Botswana's Affiliation Proceedings (Amendment) Act, 1999
Published online by Cambridge University Press: 28 July 2009
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- Statute Note
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- Copyright © School of Oriental and African Studies 2000
References
1 Cap. 28:02. The Act was based on the English Affiliation Proceedings Act, 1957, with only a few alterations.
2 S. 3 of the Act.
3 S. 4 of the Act.
4 See Sichinga v. Phumelse [1982] 2 B.L.R. 161 at 162Google Scholarper Corduff, , Makuati v. Ramohago unrcportcd. Civil Appeal No. 7/1982Google Scholarper Hannah, , and Mashadi v. Gabatshwane, unreported Civil Appeal No. 10/1983Google Scholarper Hannah, The unreported cases are cited in A. Molokomme, “Disseminating family law reforms: some lessons from Botswana”, (1990/1991) 30 & 31 Journal of Legal Pluralism and Unofficial Law 303 at 313.Google Scholar In Moatlhodi v. Oduelse [1978] B.L.R. 33 at 35 Edwards J., A.Google Scholar, however, held that the 12-month time limit was directory and not peremptory.
5 See Griffiths, A., “Support for women with dependent children under the Bakwena customary system and the Roman-Dutch common and statutory laws of Botswana”, (1984) 22 Journal of Legal Pluralism 1CrossRefGoogle Scholar and Molokomme, A., “The mosaic of Botswana's maintenance law”, (1987) 19 Botswana Notes & Records 129.Google Scholar See also Molokomme, A., Children on the Fence: The Maintenance of Extra-Marital Children under IMW and Practice in Botswana, Ph.D. thesis, University of Leiden, 1991, at 82–85.Google Scholar
6 See Molokomme, , Ph.D. thesis, op. cit. at 82, and “The mosaic of Botswana maintenance law”, op. cit., at 132.Google Scholar
7 See Molokomme, , Ph.D. thesis, op. cit. at 77. See also Moatlhodi v. Oduetse, op. cit. at 34–35.Google Scholar
8 See note 17 below.
9 There are five grades of magistrates, namely, Magistrate Grade II, Grade I. Senior Magistrate, Principal Magistrate and Chief Magistrate. See s. 8 of the Magistrates' Courts Act, 1974, as amended by s. 4 of the Magistrates' Courts (Amendment) Act, 1992.
10 At the time of writing this note P4.50 is equivalent to US$1.
11 Ss. 6(1), (2) and (3) of the Act. The provision in these sections for the specified amounts to be paid weekly is an example of blind copying of English statutes without taking into account the peculiarity of the country. Workers are generally paid on a monthly basis. For the background to these statutory provisions, sec Molokomme, , Ph.D. thesis, op. cit. at 71–72.Google Scholar
12 Unreported Misca. 13/1996 (8 January, 1997).
13 See s. 95(1) of the Constitution.
14 In terms of s. 45 of the Interpretation Act, 1984, the use of the words “may” in an enactment shall be construed as permissive and empowering and the use of “shall” construed as imperative.
15 See Rakwela & Anor. v. Motshegive unreported Misca. 332/1996 (21 February. 1997) where the High Court awarded P200 per month against the putative father and Roiela & Anor. v. Tomeletso unreported Misca. 452/1996 (21 February, 1997) in which again P200 was awarded against the putative father.
16 S. 3 of the 1999 Act amending s. 2 of the principal Act.
17 S. 5 of the 1999 Act amending s. 4 of the principal Act.
18 S. 4 of the 1999 Act amending s. 3 of the principal Act.
19 Ibid. This accords with the position under Roman-Dutch law. See J. Voet, Commentaries ad Pandectas, The Hague. 1698–1704, at 48.5.6.
20 Above at p. 4 of the transcript. Sec also Moatlhodi v. Oduetse op. cit. at 34 per Edwards, J.
21 On the common law duty of maintenance of children, see Spiro, E., Law of Parent and Child, Cape Town, 1985, at 392 and the South African case of Lamb v. Sack 1974 (2) S.A. 670 (T) at 67 IF and 673E.Google Scholar
22 See the Daily News, 8 July, 1999 No. 128 at 3.
23 See the contributions of Hon. Gladys Kokorwe MP for Thamaga who suggested that the minimum should be P400 and Hon. M. Kgosipula MP for Mogoditshane who thought the P100 will be too much for the unemployed to pay. See the Daily News, 8 July, 1999, No. 128 at 3.
24 Most of the cases that have come before the High Court were with the support of an NGO. the Metlhaetsile Women's Information Centre in Mochudu. Without such support, it is debatable whether those women involved in the actions could have afforded the costs.
25 S. 7 of the 1999 Act amending s. 6 of the principal Act.
26 See Molokomme, A., “Disseminating family law reforms: Some lessons from Botswana”. (1990/1991) 30 & 31 Journal of Legal Pluralism and Unofficial Law 303.Google Scholar
27 See s. 8 of the 1999 Act amending s. 7(4) of the principal Act.
28 S. 8 of the 1999 Act inserting a new s. 4A into the principal Act.
29 See the Daily News, 8 July, 1999, No. 128 at 3.
30 See ss. 3 and 4 of the 1999 Act amending ss. 2 and 3 of the principal Act.
31 See Ord. XXV Magistrates' Courts Rule's 1971.
32 See Molokommc, “Disseminating family law reforms”, op. cit. at 315.
33 See Brown, B., Report on Child Maintenance Laws, Gaborone, 1984.Google Scholar
34 For the problems associated with the dissemination of information about legal issues to women, see Molokomme, “Disseminating family law reforms”, op. cit. at 318–326.
35 Some of the socio-economic problems facing unmarried women are discussed by Campbell et al. in “A note on the child and environment interrelations in Botswana”, a paper presented at the Central Statistics Office/Union for African Population Studies conference on population and environment in Africa held in Gaborone from 14–19 September, 1992.