Professional Documents
Culture Documents
The ways in which the law may be classified, including the differences between public and private
law, civil and criminal law and common law and equity;
The basic principles of legal liability, such as the distinction between civil and criminal liability.
DEFINITION OF LAW
Law is defined as the rules made by humans which regulate social conduct in a formally
prescribed and legally binding manner. It could be said to refer to some written and unwritten
rules derived from customs and as formal enactment which are recognized by the people as
binding on them and could be imposed upon them by some appropriate authority.
SOURCES OF BOTSWANA LAW
The Constitution
Customary law
Common law
Legislation
Judicial precedent
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Roman Dutch law is said to be the common law of Botswana which was inherited from the Cape
Colony. The Roman Dutch law origin is found in Roman law as influenced by Dutch customary
law.
It was introduced to the then-Cape Colony in 1652. Over the years it has been influenced by the
English Common law after British colonization of the Colony. The Criminal Law of Botswana is
originated from the English and evidence is based on South African Law. In Botswana, it has
been developed over years by statutes passed by the Parliament and Judicial decisions.
LEGISLATION
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JUDICIAL PRECEDENT
The doctrine of judicial precedent is also referred to as stare decisis, which is a Latin phrase
which means let the decision stand.
In terms of this principle a lower court is bound by the decision of the higher court. The
precedents are those already decided and reported cases by the higher courts. The adherence to
the precedent helps achieve a regime of stable laws that brings about predictability and ensures
that law develops in accordance with community needs.
TREATIES
These are international instruments ratified and/or signed by Botswana and other international
countries.
Botswana is a dualism country, which basically means the treaties that Botswana is a signatory
to, have to be ratified and domesticated to be laws of Botswana. This is also noted in the case of
Good v The Attorney General, where the court held that;
International treaties to which Botswana was a signatory did not have the
force of law until incorporated in the domestic law. Section 24(1) of the
Interpretation Act (Cap 01:04) provided that such international conventions
and treaties as far as they had not been incorporated into domestic law may be
used as an aid to construction of the Constitution and of statutes.
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Court of Appeal
High Court
Magistrate Courts
Customary Courts
CLASSIFICATION OF LAW
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CRIMINAL LAW
CIVIL LAW
Disputes
between
private
Concerns
individuals
one
who
against.
wrong
is
done
All courts
All courts
Decision
probabilities.
Sanctions
or
Capital (interdict),specific
injunction
performance etc.
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EXAMPLES
of
contract,
tort
alcohol,
CIVIL LAW.
Civil law involves wrongs against the person. Under civil law, a person can sue another person, a
business, or the government. Court judgments in civil cases often require the payment of a sum
of money to the injured party. Civil law includes a general category of law known as torts.
A TORT is broadly defined as a civil wrong committed against a person or property that
causes physical injury or damage to someones property or that deprives someone of his
or her personal liberty and freedom. Torts may be intentional (willful) or unintentional
(accidental).
o Intentional Torts. When one person intentionally harms another, the law allows
the injured party to seek a remedy in a civil suit. The injured party can be
financially compensated for any harm done by the person guilty of committing the
tort. If the conduct is judged to be malicious, punitive damages may also be
awarded. Examples of intentional torts include the following:
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CASE: In the case of, Estate of Berthiaume v.Pratt, an invasion of privacy case was
tried after a patient with cancer of the larynx died. The decease patient had
allowed his Physician to take several photographs that were to be used for the
medical record but not for publication. A few hours before he died, the
surgeon and a nurse attempted to take more photographs in spite the patients
indication that he did not want this done and his wifes protests. The wife sued
the surgeon for assault, since he had moved the patients head during the
photo taking, as well as invasion of privacy. An appeal court found in favor of
the plaintiff and stated that taking photographs in spite of the patients protest
was an invasion of his legal rights to privacy.
o Unintentional Torts. The most common torts within the health-care delivery
system are those committed unintentionally. Unintentional torts are acts that are
not intended to cause harm but are committed unreasonably or with a disregard
for the consequences.
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