ABSTRACT
Chapter 9, focusing on an inheritance case, starts from a perspective on a much-delayed and now controversial shift in the nature of customary courts as forums. Courts were known in the past for their procedural openness to debate. The presiding judge allowed members of the court, usually in ascending order of seniority, to express their views on the case, before finally reaching a judgement. Most scholars of Tswana society, from Isaac Schapera onwards, agree that the chief’s final judgement was responsive to public opinion as expressed during a hearing. It was this public debate that arguably made Tswana customary law ‘living law’, collectively reflecting current understandings and changing normative assumptions. But early on in the history of the Protectorate, this customary form of consultation was challenged by the first British High Commissioner to Bechuanaland, who ultimately lost, leaving the matter for 90 years, until an amendment in the 2013 Customary Law Act granted chiefs or presiding court headmen sole decision-making authority, without the need for consultation. This new dispensation was evident in the chiefly conduct of a customary court case convened in 2017 to consider the inheritance of the properties of a long-deceased man in Moremi village.
