oa Botswana Notes & Records - Is customary marriage a "union" ?

Volume 21, Issue 1
  • ISSN : 0525-5090



The aim of this article is to review in broad outline the decision in the case of ONTIBILE LEKOKO v KGOMOTSO LEKUKA.1 It will be shown that contrary to what the case decided, Tswana marriage is legally recognised and therefore it is not a union. It will also be shown that Tswana marriage is a complex issue as the Tswana marriage has to co-exist with the civil or Christian marriage imported into southern Africa by European missionaries and settlers. This co-existence has caused a lot of confusion for practising lawyers, judges and academic writers on marriage laws in Botswana.2 In the present case the judge referred to customary marriage as a union. This may have been due to the judge's legal background. In South Africa, where the judge originates, customary marriages are not recognised as such, but only as unions? It seems, too, that both lawyers in the present case had scant knowledge of the position of customary law and the history of customary law of marriage.

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