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Published online by Cambridge University Press: 28 July 2009
Marriage as a social institution has been deliberately protectedas a matter of State policy. Such protection manifests itself in a variety of ways, one of which is the subject of this article. In an attempt to protect the sanctity of marriage, a rule evolved under which spouses cannot give evidence against each other in legal proceedings. In the words of that venerable English jurist, Coke, if this were not so “it might be a cause of implacable discord and dissension between the husband and the wife”. The rule shows itself in strange ways both in criminal and civil cases. For example, the law regards spouses as one person and as such they cannot conspire with each other. Although the institution has been on a slippery slope for a long time with the increasing prevalence of “cohabitation” it has shown remarkable resilience and most of the population still partake and support it. The British bequeathed the rules relating to competence of spouses to Botswana some decades ago and these have since been applied in their pristine purity although the legislature left an escape route by which they could be supplemented. It is this route for supplementation which has led to issues that need to be resolved. Some of these are explored in this article, after a brief historical background of the reception of the rules.
1 See for example W. Duncan, “Supporting the institution of marriage in the Republic of Ireland”, and Hoggett, B., “Ends and means: The utility of marriage as a legal institution”, in J.M., Eekelaar and S., Katz (eds.), Marriage and Cohabitation in Contemporary Societies, Toronto, 1980, 82 and 94 respectively.Google Scholar
2 Coke on Litdeton 6(b).
3 See for example the dictum of Lord Russell in Fender v. St John-Mildway [1938] A.C. 1 at 34–35 and the Central Statistics Office, Social Trends, London, 1991, 21.Google Scholar
4 That is the living together of couples outside the bonds of matrimony. See the Report of the Law Reform Committee on Marriage, Inheritance etc. (June—December 1986) presented to the National Assembly on 8 March, 1989, and the comments on it by Quansah, E.K., “Proposals for the reform of the law of marriage in Botswana—Some Observations”, (1994) 8 Pula:Botswana Journal of African Studies 37 and Haskey and Kiernan, “Cohabitation: some demographic statistics”, (1990) Family Law 442–44.Google Scholar
5 No. 36 of 1909.
6 See Hoffman, L.H. and Zeffertt, D.T., South African Law of Evidence (4th ed.), Durban, 7–8.Google Scholar
7 See Pain, J.H., “The reception of English and Roman-Dutch law in Africa with reference to Botswana, Lesotho and Swaziland,” (1978) XI CILSA 137.Google Scholar
8 S. 24 of the Interpretation Act. (cap. 01:04) allows, for the purpose of ascertaining that which an enactment was made to correct, the use of certain extraneous aids, inter alia, textbooks or other works of reference, reports of any commission of inquiry into the state of the enactment and any papers laid before the National Assembly in reference to the enactment or to its subject-matter, but not to the debates in the Assembly.
9 Cap. 08:02.
10 See for example State v. Sechom and Anor [1975] 1 B.L.R. 33 (C.A.) where s. 38 of the Children and Young Persons Act, 1933, was applied to answer the question whether the unsworn testimony of a child required corroboration.Google Scholar
11 Unreported Criminal Trial No. 43 of 1984. The case subsequently went on appeal as [1985] B.L.R. 281 (C.A.) but the Court of Appeal did not allude to the dictum referred to in the text.
12 For similar effect of dated reception formula in other African jurisdictions, see Allott, A., Essays in African Law, London, 1960, 31,Google Scholar discussing the Supreme Court Ordinance of the Gold Coast (Ghana) and Park, C., The Sources of Nigerian Law, London, 1963, 20–24 discussing a similardated reception clause for Nigeria.Google Scholar
13 See R v. Mount (1934) 24 Cr. App. R. 135Google Scholar and R v. Boucher (1952) 36 Cr. App. R. 152.Google Scholar
14 R v. Lord Mayor of London (1886) 16 Q.B.D. 772, 775.Google Scholar
15 R v. Varolla [1963] 1 QB 285Google Scholar and R v. Lapworth [1931] 1 K.B. 117Google Scholar
16 See Hoskyn v. Metropolitan Police Commissioner [1979] A.C. 474.
17 [1912] A.C. 305.
18 Op. cit., n. 16.
19 See s. 1 Evidence Amendment Act, 1853.
20 (1802) Peak Add. Cas. 219.
21 See Cross, R., Cross on Evidence (3rd ed.) London, 1967, 154.Google Scholar
22 Evidence (General), Cmnd.4991, 1972.
23 ibid. para. 148.
24 For a commentary on the Act see Zander, M., The Police & Criminal Evidence Act 1984 (3rd. ed.), LondonGoogle Scholar, 1995, and for a discussion of s.80 of the Act see Greighton, P., “Spouses: competence and compellability”, [1990] Crim. L. R. 34.Google Scholar
25 See Zander, op. cit., 249 and Creighton, loc. cit, 40.
26 Cap. 08:02. Customary law marriage is potentially polygamous for a man but monogamous for a woman, polyandry being proscribed.
27 Cap. 29:01. See Quansah, E.K., Law of Marriage and Divorce in Botswana, University of Botswana, 1992.Google Scholar
28 It should be noted that preparatory examination is more or less obsolete due to the cumbersome nature of the procedure and frequent use of s. 96 of the C.P. & E. by the Attorney-General. The section provides in subsection (1) “Notwithstanding anything contained elsewhere in this Act the Attorney-General may, if he considers it desirable to do so, at any time and whether or not a preparatory examination has been commenced, serve upon an accused notice of his intention to indict him for trial before the High Court on a charge of any offence specified in such notice.” See the remarks of Dendy Young, C.J. in Stale v. Sigololu [1968–1970] B.L.R. 157.Google Scholar
29 For example, assaults: ss. 246—49 of the Penal Code Cap. 08:01.
30 ibid., s. 173.
31 ibid., ss. 168 and 169.
32 ibid., ss. 144 and 145.
33 ibid., ss. 141–143 and 146–149.
34 ibid., s. 270.
35 See State v. Simuula [1975] 1 B.L.R. 101.Google Scholar
36 [1983] B.L.R. 106. Ss. 213 and 216 of the 1973 Revarenow ss. 214 and 217 of the current 1987 Rev.
37 ibid. at 110.
38 Cap. 29:05 1987 Rev.
39 61 & 62 Vict. c. 36.
40 1951 (1) SA36(A).
41 Criminal Procedure and Evidence Act, 1917, ss. 263 and 320. See now ss. 195 and 206 Criminal Procedure and Evidence Act, 1977.
42 At 40E.
43 Unreported Crim. Trial No. 36/1994 and Crim. App. No.25 of 1996 respectively.
44 At p. 4 of the transcript.
45 This is the date on which the present revision of the laws of Botswana came into effect.
46 (1888) 21 Q..B.D. 52 at 65.
47 Op. cit., n. 40.
48 Op. cit., n. 36.
49 Para. 148 of the 1972 11th Report of the English Criminal Law Revision Committee, which recommended the abolition of the spouse's incompetence to testify for the prosecution.
50 See the English cases of Monroe v. Twistlelm (1802) Peak Add. Cas. 219 and R v. Algar [1954] 1 QB 279.Google ScholarJudicial separation still renders the spouse incompetent: Moss v. Moss [1963] 2 QB 799.Google Scholar
51 See nn. 20 and 50.
52 52 Other sections that refer to the date are s. 10 (privilege of professional advisers), s. 13 (evidence of character), s. 16 (evidence as to appointment to public office), s. 18 (hearsay evidence), s. 19 (answering of incriminating questions), and s. 22 (impeachment and support of witness's credibility).
53 This sub-section overruled Ngungwa v. Ngwigwa [1976] B.L.R. 87 which applied the English common law rule enunciated in Russell v. Russell [1924] A.C.687(H.L.) and the Evidence Act No. 4 1861 of the Cape Colony.
54 See the dictum of Lord Salmon in the English case of Hoskyn v. Metropolitan Police Commissioner [1979] A.C. 474 at 495C.
55 See para. 147 of the 11th Report of the English Criminal Law Revision Committee, Cmnd. 4991(1972).
56 See the comment of Van Den Heever, J.A., in the South African case of Ex parte Minister of Justice: In re R v. Demingo 1951 (1) SA 36(A) at 48–49;Google Scholar s. 58 Ghana's Evidence Decree 1975; the reforms made in England by the Police and Criminal Evidence Act, 1984; Rule 601 American Federal Rules of Evidence; and the Crimes Act, 1958, of the Australian State of Victoria.
