In Botswana, children exist under three different legal regimes often co-existing, namely, the common law, customary law and statute law. In this case, the child’s mother Unami Motlogolo gave birth to Lefika Motlogolo on November 12, 2014.
“The child’s biological father is one Botho Setho. At the time of the birth of the minor, the parents were not married. They never got married meaning that the child was born out of wedlock and remained so.
Unfortunately, the child’s mother, Unami, died in October 2019 leaving the child in the custody of her sister, Bokang Motlogolo. By dint of further misfortune, the child’s father was arrested and convicted of robbery and was sentenced to a long term imprisonment.
In his absence, his mother, Grace Setho, who is the applicant before this court stepped in and claimed custody of the minor child in her rights as the child’s paternal grandmother. Her case is that her son is the only surviving parent and she is available as grandmother to raise the child,” said Moroka in the judgement. Meanwhile, a custodial battle between the child’s paternal grandmother and her maternal aunts, principally the first respondent (Anastacia Khwai) ensued, said Justice Moroka.
“The respondents argue that because the child was born out of wedlock, her principal place of abode should be her mother’s and that in terms of customary law, the child’s father has no custodial rights over the child until or unless he fulfils the ritual of paying damages to the child’s mother’s family and be permitted by them to have custody of the minor child.
This they argue coincides with Botswana’s common law. Their position is therefore that if the applicant (Grace) seeks custody of the minor child, she must first fulfill the customary law rights,” Justice Moroka explained.
The maternal grandmother seeks custody on the basis that she is better placed to provide for the child. On the other hand, the aunts are opposing the application and argue that the child will be better served if custody stays with Anastacia, says the judgement, adding that the issue to be determined is who between the contesting parties offers the best opportunity for the child’s development. “This case gives rise to a confluence of the three legal norms all of which claim relevance in the resolution of the matter... The Roman Dutch Law is Botswana’s common law. As a general rule, Roman Dutch law does not recognise a relationship between a child born out of wedlock and its father, except in so far as his obligation to maintain the child... In terms of common law, the court, as the upper guardian of all minors within its jurisdiction, will only deprive the mother of an illegitimate child of its custody on special grounds...Customary law largely exists in the form of unwritten norms and customs of people who identify themselves as a tribe. Under customary law just as under common law, the primary custodial parent of a child born out of wedlock is the mother.
The father’s rights, if any, are peripheral and include visitation,” said Justcie Moroka. Be that as it may, the rigidity of customary law on custody of minor children has been tampered with by legislation.
The Customary Court Act (Cap 16:01) tampers the position of customary law though Section 6 of the Act that provides that: “Notwithstanding anything to the contrary in this Act, in any case relating to the custody of the children, the welfare of the children concerned shall be paramount consideration irrespective of which law is applicable,” Moroka clarified. The message is therefore that under customary law, the determination of custody of minor children must be guided by the welfare of the child. This therefore means that the rights of the mother of a child born out of wedlock triumphs over those of the father. The pivotal consideration is the welfare of the child, Moroka continued.
“In recognition of the universality of the rights of the child, the United Nations (UN) passed the Convention of the Rights of the Child (CRC) in 1989. This convention constitutes the bill of rights of the children globally. The CRC has been domesticated through the promulgation of the Children’s Act (Cap 28:04). The Children’s Act is the primary legislation as far as children and welfare of children is concerned... As earlier said, in the hierarchy of legal norms, statute law ranks above common law and indeed above the customary law.
Consequently, the primary legislation in matters of child custody is the Children’s Act...,” said Justice Moroka. The case at hand is rather peculiar in that none of the protagonists who are fighting for the child is a parent to the child... said Justice Moroka. “In resolving the matter and in answer to the issue raised by the respondents about the applicability of customary law to the case, the primary consideration in determining where the custody of the minor child should go is the best interests of the child. The question is therefore which of the contesting parties present the best possible opportunity for the child’s holistic development. A social welfare officer has assessed the parties and submitted a report in assistance of the court. It is a useful report, however, the call is for the court to make and not a social welfare officer. Over and above what the applicant said about herself, the social welfare officer says in the report that the applicant lives in Chadibe village with her now jailed son. The homestead has a two-room house.
The applicant works as a housekeeper in Borolong and earns P1,300 per month,” the judgment reads. In respect of Anastacia, the social welfare officer says that she works as a special constable in Gaborone. “She lives in an institutional house which she shares with three other workmates. She has two children of her own. She wants to live with the minor child. The second respondent (Bokang) lives in a rented two and half house in Gerald Estates in Francistown. She is a street hawker who makes P2,000 per month. She has washed her hands off the matter and suggests that the child be taken by Anastacia. What is significant is that she currently lives with the child. The social welfare officer paints a sombre picture of the current circumstances of the minor child under the reluctant custody of Bokang. Bokang has been living with the minor child for the past two years.
The child is in school but her performance is progressively deteriorating. Teachers have raised concern with Bokang and invited her to the school to discuss the welfare of the child but she refused to attend the meetings with teachers,” the judgment went on. “It is very evident that the two aunts have their hands full of their own personal problems. The child is in a bad state under the custody of Bokang and Anastacia who is better placed has taken no steps to improve the situation.
Moving the child from Bokang to Anastacia would be akin to moving the child to the upper deck of a sinking ship. The child will eventually drown. The applicant is no doubt a loving grandmother with a passion to raise her granddaughter. She presents the best possible opportunity for the child’s development. It would be in the best interests of the child to award her custody to the applicant. There is, however, a need for the child to keep in contact with her maternal relatives. For that reason, there ought to be visitation rights extended to the aunts on school holidays. The application succeeds and I issue the following orders: Custody of the child is awarded to the applicant, the applicant shall permit the child to visit her maternal relatives during school holidays and no order to costs is made.” NB: All names of the parties in this article have been changed to protect the interests of the minor child.
