Pushing the boundaries of customary law jurisprudence in Botswana: social science and the law in the case of Ramantele vs. Mmusi

ABSTRACT

In Ramantele vs. Mmusi and others (2013), Botswana's Court of Appeal decided that the family home in Kanye, Botswana belonged to Edith Mmusi and her sisters instead of Mmusi's nephew, Molefi Ramantele. Through an analysis of the Mmusi case, this article speaks to legal scholars’ interest in customary law jurisprudence and gender issues. It reflects on recent attempts by lawyers and activists to use social science evidence and the prism of living law, to tackle gender inequality through litigation. The article proposes that under certain conditions, it is possible to use evidence of nuanced social realities to destabilise the forms of knowledge on which courts usually adjudicate and to challenge the marginalisation of women's voices that tends to accompany these court hearings. In the Mmusi case, the introduction of certain social science evidence and methods opened a space for the Court of Appeal to consider Mmusi's argument about customary law, rather than dismissing it as having no place in debates on custom or glossing over it as a repeat of an argument about “Western” rights. However, the Mmusi case also hints at the limits of incorporating arguments about the living nature of local or customary law into institutional legal settings.

KEYWORDS:

• Customary law
• living law
• land rights
• gender and law
• strategic litigation

Acknowledgments

I would like to thank Rosalie Kingwill, Aninka Claassens, Boitumelo Matlala, Geoff Budlender, Ada Order, Tom Bennett and Wilmien Wicomb for their guidance and comments as this article has developed.

Disclosure statement

No potential conflict of interest was reported by the author.

Legal documents

Botswana

Attorney General of Botswana vs. Unity Dow. Court of Appeal. 1992.

Kweneng Land Board vs. Matlo, Court of Appeal. BLR 292. 1992.

Kweneng Land Board vs. Mpofu and Nonong. Court of Appeal, 1992.

Molefi Silabo Ramantele vs. Edith Modipane Mmusi, Bakhani Moima, Jane Lekoko and Mercy Kedidimetse Ntshekisang. Court of Appeal Civil Appeal No. CACGB-104-12, 3 September 2013.

Ramantele vs. Mmusi & others, Judge Kirby's concurring judgment, Court of Appeal, 2013.

Edith Mmusi, Bakhane Moima, Jane Lekok & Mercy Kedidimetse Ntshekisang vs. Molefi Silabo Ramantele & The Presiding Officer of the Customary Court of Appeal (represented by the Attorney General of Botswana), High Court of Botswana, 12 October 2012.

Molefi Silabo Ramantele vs. Edith Mosadigape Mmusi, Customary Court of Appeal Civil Appeal Case no 99/2010.

Edith Mmusi vs. Molefi Ramantele. Higher Customary Court Civil Appeal No. 08/08.2008.

Molefi Silabo Ramantele vs. Edith Mmusi, Lower Customary Court, 15 August 2007.

Edith Mmusi and sisters, “Response to Mr Molefi Ramantele's grounds of appeal in the matter against Edith Mmusi and sisters,” letter to Customary Court of Appeal on 22 July 2009.

Heads of argument on behalf of the appellants, Court of Appeal, Ramantele vs. Mmusi & Others.

Heads of Argument on behalf of the respondents. Court of Appeal. Ramantele vs. Mmusi & others. 2013.

South Africa

Alexkor Ltd and Another vs. Richtersveld Community and Others, Constitutional Court of South Africa (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC), 14 October 2003.

Bhe and Others vs. Khayelitsha Magistrate and Others, Constitutional court of South Africa (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC), 15 October 2004.

Shilubana and Others vs. Nwamitwa. Constitutional Court of South Africa,(CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC), 4 June 2008.

Sigcau vs. President of the Republic of South Africa and Others, Constitutional Court of South Africa (CCT 93/12) [2013] ZACC 18; 2013 (9) BCLR 1091 (CC), 13 June 2013.

Van Breda and Others vs. Jacobs and Others, Appellate Division 330, 1921.

Other

Interview with Advocate Geoff Budlender, Cape Town, 7 July 2014, on file with the author.

Wicomb, Wilmien. 2013. Memorandum prepared for amicus intervention in Sigcau vs. President of the Republic of South Africa and Others, on file with the author.

Attorney General of Botswana, Athaliah Molokomme, quoted in “Botswana Women Allowed to Inherit,” BBC News Africa. Accessed 20 May 2014. http://www.bbc.com/news/world-africa-19924723.

Notes

1. The Court of Appeal consists of eight judges from Commonwealth countries outside of Botswana. The judges for Ramantele vs. Mmusi & others were Kirby, Twum, Foxcroft, Legwaila and Lesetedi.

2. The Rural Women's Action Research Programme is now the Land and Accountability Research Centre in the Faculty of Law, University of Cape Town.

3. Edith Mmusi vs. Molefi Ramantele, Higher Customary Court Civil Appeal No. 08/08, 2008, p. 2. Note that Kgosi Lotlaamoreng II's judgment only contains page numbers, not paragraph numbers.

4. Molefi Silabo Ramantele v Edith Modipane Mmusi, Bakhani Moima, Jane Lekoko and Mercy Kedidimetse Ntshekisang (2013) (CA) CACGB-104-12.

5. My understanding of property is informed by scholars such as Sara Berry and Christian Lund, who have argued that property is not a “thing” owned exclusively by a single person. Rather property is a process of “negotiation” between people and institutions, where political and social authority as well as access to resources are at stake. See Berry (1993) and Lund (2002).

6. Kingwill (2014, 229–330) argues that inheritance and succession need to be distinguished for the purposes of understanding changing approaches to the inheritability of land; these nuances were not discussed at length during the parties’ arguments in the Mmusi case.

7. Kingwill (2014, 234) shows that in Rabula, Eastern Cape, South Africa, wives’ control over property was very circumscribed, although they could gain access to or use of land through their husbands. Meanwhile, Peters (2010) shows that in matrilineal-matrilocal contexts in Malawi, daughters inherit and their husbands gain access to land through their wives. In short, in matrilineal systems, land passes through the mother's line and in matrilocal systems (sometimes coterminous with matrilineal systems as in parts of Malawi), husbands move to their wives’ family homes upon marriage (Peters 2010). Kingwill and Peters emphasise the importance of being attentive to these local dynamics when examining customary law, which differs from place to place.

8. For further elaboration on this notion, see, for e.g., Fombad and Quansah (2006); Bennett (2004); Twining (2006).

9. Moore (1992, 18–21) argues that rules of evidence stemmed from colonial administrators’ tussle to wrest power away from Africans. This tussle brought to light many of the cracks in the colonial state's ideology. On one hand, colonial administrators compared customary law to the English common law, viewing it as flexible, fluid and primitive (Moore 1992, 21). On the other hand, colonial administrators noted that customary law's flexibility needed to be sacrificed if it was to be brought in line with British principles of natural justice and morality. This led to the development of a set of customary law rules, which would be applied to the facts of each case.

10. Molefi Silabo Ramantele vs. Edith Mmusi, Lower Customary Court, 15 August 2007, p. 27. Note that Presiding officer Ketsitlile's judgment only contains page numbers, not paragraph numbers.

11. Ramantele's team argued that it was fair for the family home to pass to Ramantele rather than Mmusi: “When living customary law is interpreted and applied in its correct constructive manner, it is unlikely that there is going to be any substantive discrimination. In other words, the normal traditional checks and balances that come from consensus building and that usually ensure fairness and justice need to be constantly infused into such situations so as to take account of changing circumstances and also to avoid any unnecessary hardship.” Heads of argument on behalf of the appellants, Court of Appeal, Ramantele vs. Mmusi & others, para 13.4.2.

12. The Court clarified the relationship between the rights and freedoms enshrined in section 3 of the Constitution and the limits placed on these rights and freedoms. This was important because section 15 specifically excludes matters of inheritance and marriage from its prohibition on discrimination.

13. While there is not space to discuss it here, many scholars have noted that the repugnancy clause's roots in regimes of colonial control means it was in the past, and remains in the present, ill-suited to the application of customary law (see McClendon 2010; Taiwo 2009).

14. Theun (2004, 283) argues that by showing that all law is in some sense constructed and “living”, anthropological research can challenge the legal profession in Canada not to compartmentalise customary law by seeing it as one of several sources informing one body of law. It is precisely this premise that also threatens legal positivists. He quotes Slattery (1992, 120): “They are bound to apply the law. And that law is the law of all Canadian citizens, of whatever colour, race, or ethnic origin. The law of Canada is an amalgam of laws emanating from many sources and includes the customary laws of aboriginal Canadian nations. More to the point, it includes the common law of Canada, which, as the Supreme Court of Canada has recognised, is the source of the law of aboriginal rights.”

15. Ramantele's team cited J Comaroff & J Comaroff, “Reflections on Liberalism, Policulturalism and ID-ology: Citizenship and Difference in South Africa”, Social Identities 9 (4), 2003. They used this article to argue that the “process of succession in many African countries has always been adaptable to the needs of the community.” Heads of argument on behalf of the appellants, Court of Appeal, Ramantele vs. Mmusi & others, para 12.6.