A panel of three judges of the Court of Appeal has unanimously agreed that presidents of urban customary courts cannot have the same tenure of office as magosi because the two fall under separate legal regimes
GAZETTE REPORTER
The Court of Appeal has ruled in favour of the Ministry of Local Government and Traditional Affairs in a case involving 12 estranged urban customary Court presidents who had previously won a High Court case on their tenure of office.
The ministry had appealed a ruling by Justice Zein Kebonang of the Gaborone High Court who had declared that the urban customary court presidents were entitled to the same tenure of office as their counterparts in tribal areas in accordance with the Bogosi Act.
The 12 initially approached the High Court seeking recognition of their tenure, arguing that they should enjoy the same employment conditions as traditional leaders (magosi).
Not legally equivalent
In 2023, Justice Kebonang ruled in their favour, ordering the ministry to make the necessary adjustments to ensure that the urban customary court presidents, whether employed permanently or on fixed or short-term contracts, receive tenure protections similar to those of magosi.
However, the government challenged the decision, arguing that the urban court presidents were not entitled to the same security of tenure because their employment falls under the Customary Court Act and not the Bogosi Act.
The ministry’s legal representatives contended that the Bogosi Act, promulgated in 2008, governs only traditional leadership while the urban customary court presidents operate under a separate legal framework.
Distinct
The government further argued that while both magosi and court presidents perform similar judicial functions, their positions are distinct, and court presidents should not expect to be governed by the same legislation as magosi.
Additionally, the ministry emphasised that the term “dikgosi” is used colloquially to show respect for court presidents but does not confer legal equivalency.
In their response, the urban court presidents maintained that despite being governed by different laws, they perform duties equivalent to those of magosi and should be granted equal rights, including extended retirement age and tenure security.
Discriminatory
They argued that the existing legal framework was discriminatory and sought amendments to include them under the Bogosi Act.
Ultimately, the Court of Appeal dismissed their arguments and took the view of the ministry. The panel of three judges – Justices Bess Nkabinde, Johan Froneman, and Reuben Lekorwe – agreed that while court presidents may be referred to as “dikgosi” in social settings, this designation is not recognised by law.
The ruling reaffirmed that the customary court system in urban areas remains distinct from that of tribal leadership.