Distributive vs Corrective Justice & Law in Botswana

Foundation of Engineering Law: Introduction to Law

• Law in Botswana is categorized by nature, classification and sources.
• It is important to understand what law is, and its nature.

The Meaning and Nature of Law

• The Scandinavian word "lagu," meaning something settled or laid down, is the origin of the word "law."
• Law is a body of rules that guide behavior, considered norms.
• Norms are regulations for behavior and operation, promoting social order; they act as a means of social control in society.
• Law, as defined by the Shorter Oxford Dictionary, is a formally enacted or customary body of rules recognized by a state or community that governs its members and can enforce these rules through penalties

Differences between Law and Other Concepts

Law and Morality

• Law is a binding body of rules and regulations.
• Morals are non-compulsory general principles or standards for behavior.
• Fornication exemplifies a moral standard not compulsory by law.

Law, Customs, Conventions, and Social Norms

• Customs are widely accepted behaviors specific to a place, time, or society.
• Laws are formal, deliberately established sets of rules governing behavior.
• Customs grow organically, while laws are intentionally created.

Law and Justice

• Law and justice are strictly connected but not synonymous.
• Justice is a broad concept encompassing equality, fairness, and morality.
• Law is a body of regulations and standards made by governments and international bodies that should ideally reflect justice.
• Laws are written rules governing citizens and the government, whereas justice may not be universally recognized.

The Scope of the Concept of Justice

Legal Justice

• Legal justice is the strict, impartial application of law, regardless of consequences.

Distributive / Social Justice

• Distributive or social justice addresses the fair distribution of resources, opportunities, roles, offices, responsibilities, taxes, burdens, and common assets within a community.

Corrective Justice

• Corrective justice, also known as reificatory or remedial justice, deals with rectifying inequalities arising from interactions between individuals.

Natural Justice

• Natural justice is a minimum standard for decision-making imposed by common law.
• It includes two main principles: audi alteram partem (the right to a fair hearing) and nemo judex in causa sua (no one should be a judge in their own cause, the rule against bias).
• Audi alteram partem means "hear the other side", providing fair hearing.
• Nemo judex in causa sua means no one can be a judge in his cause, and is the rule against bias.

Nature of Law

• The nature of law requires it to be legitimate, enforceable, and valid.

Legitimacy

• Legitimacy is the belief that a rule, institution, or leader has the right to govern, and the belief that the law and its agents have rightful authority.
• Legitimate factors requires that it be authorised by a law that originates from a widely accepted source of law.

Enforceability

• Enforceability means laws must be capable of being put or kept in force, compelling obedience, and enforced through institutions like police, courts, and prisons.
• Law enforcement reduces crime, brings order to society, and deters potential criminals.
• The non-enforcement of laws may lead to anarchy and a rise in crime rates.

Validity

• Validity is when there is objective truth, belonging to a legal system, effectiveness or the act of being binding or having legal force.
• Austin posited that a valid law is a desire commanded by a followed sovereign, backed by a threat of sanction.
• Hart argued that validity requires a law to pass all tests of recognition.

How Law Operates

• Law operates through regulation and authorization of behavior, covering natural persons (human beings) and legal entities (organizations, institutions).
• Both natural persons and legal entities are subject to law.
• Law affects almost all aspects of a person's conduct.
• Law applies in all facets of life, such as walking in public, property ownership, relationships, and business activities.

How Law Regulates and is Influenced by Human Behavior

• Law regulates human behavior by creating rights and duties.
• Varieties of laws in a hierarchical order produce different rights and duties.
• Society members create laws through representatives in an Assembly or Legislative Body.
• Those who violate laws are held accountable.
• Humans enact laws to oversee and punish specific acts.

Role of Law in Society

Maintenance of Social Order

• Legal institutions are created to oversee legal behaviour
• Legal rules create a legal system that carries legal control

Settlement of Disputes

• Settlement of disputes occurs in Communities, families, and social groups
• It happens through enforcement of legal rules and systems.

Regulation of Economic Activities

• A regulatory framework for companies is created

Protection of Property Rights

• property rights are protected through laws for land use, ownership and transfer.

Protection of Interests

• interests of the state and individuals is protected, laying situations you can be held accountable

Regulation of Principal Organs of the State

• the state organises the: Executive; Legislature;Judiciaries; Agencies

Other Functions

• Law reinforces morality, manages international legal orders and regional legal orders.

Sources of Law

• The phrase "source of law" can have multiple interpretations.
• It can refer to finding a law, the origin of its legal authority, or how a rule developed.
• Sources of Botswana law are described from those perspectives, starting with formal sources and leading to a historical explanation.

Formal Sources of Law in Botswana

• The descending order of importance is: The Constitution, Other legislation, Common law; Custom and other Secondary Sources.

Sources of Law in Botswana

Constitution; Constitution of Botswana 1966

• A constitution establishes a system of government, defining authority boundaries.
• The constitution sets fundamental principles, defines state institutions, delineates relationships between institutions, and defines citizens' rights and duties.
• The Constitution is often the "supreme law of the land"
• The Constitution establishes the organs of the State

Supremacy of the Constitution

• The Constitution is the highest law which Parliament must not pass a law that goes against it.
• In Petrus & Another v the state [1984] BLR 14, p 33, a law against torture was declared.
• In Attorney-General v Dow [1992] BLR 119, section 4(1) of the Citizens Act was void due because it denied citizenship to offspring of Botswana women married to foreigners
• In Students Representative Council of Molepolole College of Education v Attorney-General [1995] BLR 178, a regulation requiring pregant students to leave was declared void.
• No person, even the President, can act against the Constitution.
• Botswana's Constitution was finalised in London in February 1966 through a Constitutional Conference.

Botswana Constitution Amendment 1

• S. 89 of the document gives Parliament authority to amend said Constitution, but requires special procedures for the same.
• This includes two-thirds approval from Parliament.
• These sections include the Human Rights Chapter, sections related to the Executive and Public service.

Botswana Constitution Amendment 2

• Certain vital parts can only be amended after a referendum.
• Proposed amendments have to be voted in.
• Parts such as elections, rights to votes, commission must follow those rules.

Botswana Consitution Amendment 3

• Amendments can be passed with a simple majority of members on the proposal.
• Amendments must refer to Ntlo ya Dikgosi for debate, not passed under the urgency procedure.
• A bill must be gazetted or read before further action takes place, to prevent the matter occurring again before 30 days.

Legislation

• Legislations is also regarded as acts of Parliament.
• These are laws formed by the Parliament.
• Legislature are the laws passed by the Parliament or appointed bodies.
• Laws enacted by the parliament must conform to the constitution.
• In Petrus & Another v the state [1984] BLR 14, p 33, the Court Appeal declared the Act void due to section 7(1).
• In Attorney-General v Dow [1992] BLR 119, the court declared 4(1) to be void for violating the right to citizenship for some.
• Subsidiary legislation in Students Representative Council v Attorney-General [1995] BLR 178 declared a college required regulation to be void because they left for more than a year.

Forms of Legislations

• There are acts of parliaments (primary source), Acts are define as any by Botswana or by similar authority to make laws for Botswanna.
• As they were setting up for the birth of Botswana, the council allowed them on issues.
• The legislative council were called law between 1961 to 1965. All legislative were called proclamations.
• All were called Acts after the independence.

Delegated or Subsidiary Legislation

• Section 49 declares this as a statutory.
• It defines it as such, if it is in preparation for the birth of the Acts, proclamation rules or under legislative.

Autonomic Legislation

• This is where body of authority to enact law for its own like Univeristy and Law Society.

Purpose or Functions of Legislation

• Is to create, revoke laws.
• To give effect to the will.
• Effect through what people what.
• To reform law from old, restrictive law.
• Introduce laws that appealed the other ones in place at the court.
• In State v Ndeleleni Dube [1991] BLR 175, there was the accused person gives irrelevant evidence to the cops. The parliament override certain judgements.
• In Kweneng Land Board v Matlho [1992] BLR there was public outcry.
• Revisions of the Law gives the law power.

Members of the National Assembly

• Parliament consist of the President and Assembly.
• The President acts as the ex officio member.
• He/She may speak and vote in all.
• To show the President is the highest in the Courts of the Constitution. 57 Members were selected.
• Four were chose.
• A Speaker if non members were presented.

Qualifications for Election

• Those who are looking to election the national assembly requires citizenship and voter registration.
• Those who can be not Member are one with bankruptcy as their status, insanity or death.

Exercise of Legislative Powers

• The process starts with a drafted law (Bill) in the Government Gazette.
• Followed by the bill's introduction no later than 30 days
• The Assembly's also introduce Bills.
• Without cooperation no can.
• A member must not present the government.

Legislative Process: First Reading

• A bill is made by the Attorney office
• The Clerk will read aloud.
• set date to Reading.
• Ntlo ya Dikgosi must have it ref the Sec.

Reference of a Bill to Ntlo ya Dikgosi

• The was 30 d to pass.
• Resolution to be laid before Assembly
• The can indeed ignore the bill
• Therefore non power
• Second day they see.

The promoter will explain its principles.

• After it will followed by debate specific cases.
• To more the motion.
• A select committee.
• To change or approved it.

Third Reading and Presidential Assent

• Proceedings the is without bills in the moment.
• Members will debate this for 3rd reading.
• Passes sent to the President.
• Parliament send four copies.
• He stay one and send the order copies after signing.

Withholding that assent

• Through that act, the transformed into the act
• Or no assent to bill
• Return for Assembly
• Resolve with 6 months
• must assent in 21 d or they dissolve.
• Election of Part.
• Win for party direct.

Common Law

• Common law as different connotation
• custom judicial instead statutes
• tribunal in written opinion.
• The influence if the court determines and statutes the law.

In Silverstone Pty v Lobatse Clay Works (Pty) (1996] BLR 190

• Botswana has Roman law
• Employment.
• To all those who belief.
• For major influence
• Have no enacted and customary.

Reception of Roman Dutch Common Law in Botswana

The British had power over Foreign Jurisdiction Act 1890.

• the have appointment of administer
• By proc by Admins. The same In Cape Town. Complete System Establishment.
• Had seat in Cape and PTA.
• extends it to africa. Section 19 made:

Is the foregoing shall admin same law fore time for Col hope.

• Was un unclear by this act.
• sought to that the Colonial Law.
• Has inter mean to provide the Colonial Law.

That was inter by new clause section 2 which provided Colony hope Mutatis Mutandis

• Provision for has un wri and write.
• Proclaim statute was to applic unless said for by proclaim.

Statutes revision proclaim confirmed app of un wrote but already apply and schedule that not in force to territory. To the Cape statutes already been repealed

• There lack of Roman in section
• Because law received Botswana had the to have been received

"" the common code Botswana law "" to receive it, also critic only half that was truth.

• The Mix the Original Code mixed.
• Refer to colonial. code more accurate.
• Provided serve import its. problems.

The document reveals that there has to be that english doc.

It is an actual English form of law, stare decirsis to stand.

• It also follow holo's and Courts. century.
• The applied in the tradition to help the court cases.

Judicial Precedent

• Precedence is a binding short hand known as “stare decisis et non quieta meaning stand by decision and not disturb.
• that's what they follow after the court
• judges have to be current.
• is how case is.

Binding of Legal Precedent

• appellate court follow, is when rule principles must follow.
• following and settling, low must follow the order
• it said have to be similar for some.
• decisions.

Doctrine what? and articulate that court that will action the court.

• To discover action.
• Judicial to have in original comm

Is judiciary to have constancy what the principle said to you in.

• in effort to consistency by that law. What about? combination that dev from precedent. Uniform to be clear the code.
• Where they the not to have any to that arise.
• efficiently.
• Below to court have above follow. that standing.
• to that the repo easy read reports/ Can has precedent without report.

Advantage Precedent: have confide, Preci have solution have problems. If this is be overturned is to sound is bad over. Disadvantage: Rigid complex and has illog. the absence will present any.

Ratio is what? from doc

• not every sent is that code.
• judge can have 3 parts.
• that may direct of not. a killer from.
• To the problem by act.
• action by number.
• code.

The code is from the case that's how found was it in?

If there that is the the to that date will set by the code. What by? the doc tell us some is and? But there code lead. lawyers negl or negl by states.

The other by Lord Stevenson negl in deli. are obiter dictums and in curiam to the persuasion. for a case but must not apply is that has equal. code comm have read books.

Code from

of that has by to be an all code. over is better authority. code better has code what side. code had code on code code an an what now.

Besides is to made over code it code be from code

Code code the from the facts the That also there there there was by are on what by are code it code be from the code for that

Over by

By the that has is has code is better code to by code to that the over they over Code by the code the the of. the of . the over

How

Individual small they it they call that help and they action

The the be

Action form action by help that code was .

Is when code code to has well To give power Code made it. .

To the court Small by language

Lawyer from that

The that action and all in that it

The help made To can for for the has

code has they over

An at file code is to action code by code To to that them

File code over can do that is the to that and by that It be 28. To then it on It any than and has at then it has made and there

The of of to the from they there code was one code one

All of it over

#2 Code all over . . over . was made and have over To

The it

To one time

Of if code or at now

Case it by code then there then for them to be done the most of that to do code The of has 41 over

There it has help as a them

With code them

The code there there

It code be the

Of The

With They in time To There code if code was has now

Explore distributive and corrective justice, principles of natural justice, and factors influencing law legitimacy. Examine enforceability and validity of laws, contrasting Austin and Hart's views. Learn about entrenched provisions and referendum requirements for constitutional amendments in Botswana.