Yesterday, the High Court in Botswana heard final arguments in a case challenging the Ngwaketse customary law rule which permits only for male inheritance of the family home. Previously, the Court had formally requested the Attorney General to make submissions in the matter. Yesterday was scheduled to hear oral submissions from the Attorney General and the responses of the applicant and 1st respondent to those submissions.
However, in the end the advocate representing the Attorney General spoke for 3 minutes, merely saying that though the rule was discriminatory, such discrimination was provided for under the Constitution and thus the rule should be upheld. He then relied on his written submissions.
So what did the Attorney General say in her written submissions? Basically, that the rule may be discriminatory but that it was still constitutional. She argues that there are two articles in the Constitution which protect against discrimination: section 3 which guarantees equal protection and section 15 which protects against discrimination on the basis of sex. The applicants rely only on section 3 in making their arguments because section 15 does protect against discrimination on the basis of sex, but then under section 15(4)(c) which provides for an exception to matters involving devolution of property upon death. The Attorney General argues that you cannot separate section 3 and section 15 and that the exceptions under section 15 should apply to claims under section 3.
However, there is significant case law supporting the contrary–that the exceptions under section 15 only apply to claims under section 15. For example, the Court of Appeal in Attorney General v Dow, noted that the exceptions under section 15 only applied to section 15. This has been followed by numerous courts in Botswana since, including the High Court in Kamanakao I v Attorney General and the Industrial Court in Moatswi and Another v Fencing Centre (Pty) Ltd.
This though was the primary issue in which the Judge was interested having raised it at the initial oral arguments and again yesterday. It was unclear by the end of the day which way this case is going, but we expect a decision later this year.