² The rule-centred approach is notably associated with the Restatement of African Law Project of the School of Oriental and African Studies, University of London. See particularly the volumes on Kenya by Eugene Cotran, The Law of Marriage and Divorce, 1968, The Law of Succession, 1969, and on Malawi by J. O. Ibik, The Law of Marriage and Divorce, 1970. The same approach is evident in two articles by N. N. Rubin, “The Swazi Law of Succession: A Restatement”, [1965] J.A.L. 90; “Matrimonial Law Among the Bali of West Cameroon”, [1970] J.A.L. 69. But the approach has not gained universal acceptance, even among lawyers; see an article by Richard L. Abel, “Customary Laws of Wrongs in Kenya: An Essay in Research Method”, 17 Am. J. Comp. L. 573.

³ I found in the course of my research in Botswana that informants generally had remarkably full and accurate recollections of disputes in which they had participated, either as a party or as someone involved in the settlement, even when the dispute had taken place years and even decades ago. The opportunity to test such recollections was often available through reference to the written record of the dispute, prepared at the time, when it came before one of the higher level courts. As several scholars have pointed out, a difficulty in trying to extract abstract rules in discussion with informants is that in some societies the legal system simply is not thought about in these terms. On this question, see William Twining, “Two Works of Karl Llewellyn—II”, 31 M.L.R. 165, at p. 169, where he quotes from The Cheyenne Way.

^{page 61 note 1} Quite detailed written records have been kept by customary courts in many of the former British African territories at least since the mid 1930's, and they have always excited the interest of anthropologists: see, for example, the accounts of such records contained in I. Schapera, “The Work of the Tribal Courts in the Bechuanaland Protectorate”, (1943) 2 Afr. Stud. 27; and later, P. C. Lloyd, Yoruba Land Law, London, 1962. The lack of interest shown by lawyers may be partially explained by the fact that most of these records are in the vernacular; another reason may be their small value as “precedents”.

^{page 61 note 2} The traditional dispute settlement procedures of the Tswana are familiar through the work of Schapera: see particularly, A Handbook of Tswana Law and Custom, London, 1938, 2nd ed., 1955, chap. XVI; “The Work of the Tribal Courts in the Bechuanaland Protectorate”, (1943) 2 Afr. Stud., 27–40. The system he described still largely survives, with the higher level traditional courts (the Chief's Courts and the more important ward courts) being adopted as the official “customary courts” under the Customary Courts Proclamation, 1961 (No. 19 of 1961).Google Scholar

^{page 61 note 3} See Married Life in an African Tribe, London, 1940, reprinted 1966.Google Scholar

^{page 61 note 4} A Handbook of Tswana Law and Custom.

^{page 61 note 5} The recording of cases at the Chief's Court began in 1935, following the enactment of the Native Tribunals Proclamation in the previous year, but as far as I could discover none of the records before 1954 survive. However, Schapera states in the article referred to, supra, p. 61, n. 2, that he made notes of the contents of those cases reported between 1935 and 1939.

^{page 62 note 1} Throughout this article reference to the “traditional” position is to that state of the law which the old men of the tribe today speak of as classical. It is not suggested that the customary law ever had a fixed and immutable form.

^{page 62 note 2} The Tswana kinship organisation is described by Schapera in A Handbook of Tswana Law and Custom, 12–19.

^{page 63 note 1} Today, a divorce may only be granted in the Chief's Court. This rule is now well entrenched in the customary law, but informants are not clear as to when the change came about.

^{page 64 note 1} Lekalake v. Lekalake, Case No. 87 of 1965 at the Chief's Court.

^{page 65 note 1} Dithare v. Dithare, Case No. 51 of 1961 at the Chief's Court.

^{page 65 note 2} Traditionally, it would have been an acceptable form of the levirate for Molefe to have raised seed for his deceased father with any of the latter's wives apart from Molefe's mother (Mankge's first wife).

^{page 65 note 3} Case No. 30 of 1959 at the Chief's Court.

^{page 66 note 1} “Madubu is only a woman who lives in my yard”, he told the ward court.

^{page 66 note 2} Mmopi v. Mabowe, Case No. 113 of 1964 at the Chief's Court.

^{page 67 note 1} Radikonyana v.Letsatsi, Case No. 26 of 1963 at the Chief's Court.

^{page 67 note 2} See infra, pp. 71–73.

^{page 67 note 3} Annah Modise v. Maporo, Case No. 51 of 1965 at the Chief's Court.

^{page 67 note 4} This form of order is considered further infra, p. 68.

^{page 67 note 5} Seitshiro v. Moremi, Case No. 76 of 1966 at the Chief's Court.

^{page 68 note 1} Lekalake v. Lekalake, Case No. 87 of 1965 at the Chief's Court.

^{page 68 note 2} Rakampa v. Ramashoboro, Case No. 78 of 1965 at the Chief's Court.

^{page 69 note 1} Rathokwane v. Pilane, Case No. 61 of 1965 at the Chief's Court.

^{page 69 note 2} And doing so, indicated his intention of going back to her: “I do not intend putting her away; I would rather share my pay with her.”.

^{page 69 note 3} As the Chief's Court ordered Molefe to do for Madubu at an early stage in their dispute; see supra, p. 65.

^{page 70 note 1} Case No. 73 of 1965 at the Chief's Court. Mary and Gilbert were married under the Marriage Proclamation, but it is common in such cases for the parties to seek matrimonial relief short of divorce in the customary courts.

^{page 70 note 2} Case No. 48 of 1965 at the Chief's Court.

^{page 70 note 3} See supra, p. 69.

^{page 70 note 4} As in Rammala v. Rammala, Case No. 23 of 1966 at the Chief's Court. Here Moakofi demanded to be divorced from his wife Nkidi on the ground that she spent time away from home and had borne a child by another man. Nkidi replied with the complaint that Moakofi beat her and neglected her (“the house we stay in has no top”). The Chief's Court granted a divorce, awarding the homestead to Moakofi— “The homestead is yours, Moakofi; Nkidi will go to her father”—and ordering the division of the cattle between them.

^{page 70 note 5} As in Pheto v. Matswe, Case No. 45 of 1965 at the Chief's Court. Here Mmalegwale complained of repeated beatings at the hands of her husband Mphakga and fled back to her own family. When her complaint was eventually heard by the Chief's Court, a divorce was ordered and she was awarded the homestead (situated in the ward to which Mphakga belonged), the field and all the cattle accumulated during the marriage.

^{page 71 note 1} While these developments represent a significant departure from the traditional law, their implications from the point of view of social organisation are not so revolutionary as might be supposed because the practice of ward segregation has been breaking down for many years.

^{page 71 note 2} Keitsiwe v. Mpoloka, Case No. 4 of 1961 at the Chief's Court; Pheto v. Matswe (see supra, p. 70, n. 5).

^{page 71 note 3} The classification of cattle held in the household is described by Schapera in A Handbook of Tswana Law and Customs, 218.

^{page 71 note 4} Rammala v. Rammala (see supra, p. 70, n. 4).

^{page 71 note 5} Pheto v. Matswe (see supra, p. 70, n. 5).

^{page 72 note 1} Although, when Chief Lentswe I formalised this action and fixed the number of cattle under it at four in a molao (circa 1909), he stated that he did so in order to safeguard the interests of children born out of wedlock.

^{page 72 note 2} Examples of actions brought by the woman herself include: Monametsi v. Molemoeng, Case No. 24 of 1955; Matlapeng v. Moremi, Case No. 48 of 1955; Pilane v. Sekgotla, Case No. 22 of 1958; Sebedi v. Moruakgomo, Case No. 5 of 1961; Kgang v. Sheeping, Case No. 41 of 1961; Khumonyane v. Mpoku, Case No. 78 of 1964; Moloi v. Matshego, Case No. 88 of 1964. All at the Chief's Court.

^{page 72 note 3} An example of an action brought in the traditional form is Pilane v. Sebifelo, Case No. 67 of 1964 at the Chief's Court.

^{page 72 note 4} Case No. 43 of 1962. Another case in which damages were recovered in respect of a second pregnancy is Pilane v. Sebifelo (see supra, p. 72, n. 3).

^{page 72 note 5} This figure may exceptionally be reduced where, for example, it can be shown that the parents took no proper steps to prevent their daughter from associating with men, or where the woman concerned went on her own initiative to a man's sleeping quarters.

^{page 73 note 1} Monametsi v. Moletnwoeng, Case No. 24 of 1955 (amount paid to be decided by Chief on receipt of doctor's account); Khumonyane v. Mpoku, Case No. 78 of 1964 (R.20 ordered).

^{page 73 note 2} Phometsi v. Ramadiakobong, Case No. 80 of 1966 (R.40 ordered); Thebe v. Tsheole, Case No. 32 of 1967 (1 beast or R.20 ordered).

^{page 73 note 3} E.g., Molwane v. Ramabya, Case No. 62 of 1965 (R.80 ordered to be paid in instalments of R.20 monthly).

^{page 73 note 4} E.g., Pule v. Kgathi, Civil Case No. 50 of 1968; Phefo v. Ditlhokwe, Civil Case No. 58 of 1968.

^{page 73 note 5} Case No. 63 of 1968 at the Chief's Court. In this case the couple were living together at the time the child was conceived, and there was some evidence that the man had extended a personal promise of marriage to the woman.

^{page 73 note 6} One interesting development bearing upon the law of evidence must also be noted. Traditionally, the customary courts have tended to regard the fact of intercourse between the two parties as conclusive evidence of paternity, unless the man can point specifically to someone else who had intercourse with the girl at about the same time. In such a case, the court normally waits until the child is born and then reaches a decision on the basis of an examination of the child's appearance. Recently, however, several scientifically-minded defendants have called on the court to order a blood test even where they have been unable to point to another party who had sexual intercourse with the girl at about the same time (Kgang v. Sheeping, Case No. 41 of 1961; Setoutwe v.Matlhaga, Case No. 2 01 1963; Thebe v. Tsheole, Case No. 32 of 1967). In all except the first case, the court has so far ignored the request, but in Kgang v. Sheeping, the case was adjourned pending the birth of the child and sutsequent medical examination, including a blood test. It is not recorded what aspect of the subsequent findings discouraged the court from further experiment in this field.

^{page 74 note 1} Notwithstanding these changes, the court records indicate that a party who has complied with the traditional procedures (i.e., has reported the dispute to the senior relations and taken their advice in attempting to promote reconciliation) is still regarded as a more credible witness and treated with more sympathy by the court. Failure to undertake the proper consultations is always an occasion for unfavourable comment from members of the court.

^{page 75 note 1} Chief Linchwe was appointed the Botswana Ambassador in Washington during 1969; it will be interesting to see whether the developments noted in this article are maintained in his absence.