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oa Comparative and International Law Journal of Southern Africa - The application of South African law in the courts of Botswana

 

Abstract

The aim of this investigation was to ascertain to what extent the laws of South Africa and Botswana, having been derived from a common source, have diverged over the years. In 1891 the law of the Colony of the Cape of Good Hope was introduced into the Protectorate of Bechuanaland. Roman-Dutch law, as influenced by English law, is the common law of Botswana and operates alongside legislation and judicial decisions as a source of law. Because different national judicial institutions interpreted and applied this law, a natural divergence of the legal systems of the two countries has taken place. However, the development of Botswana's legal system has been shaped by South African legal practice. References not only to South African judicial decisions, but also to academic works on the law of South Africa abound in the Botswana Law Reports. Judicial pronouncements from the 1980's to 1997, in which specific reference was made to the authority of that law, indicate that although the courts follow South African law, and sometimes attach more than persuasive value to South African decisions, the national Botswana identity is not sacrificed in the process. The concepts are still applied within a Botswana context.

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/content/cilsa/37/3/AJA00104051_81
2004-11-01
2016-12-03
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