Tswana Legal Maxims

I. Schapera

doi:10.2307/1158200

Tswana Legal Maxims

Published online by Cambridge University Press: 23 January 2012

I. Schapera

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Like many other peoples, the Tswana of Bechuanaland Protectorate often cite proverbs and similar sayings to specify rules of conduct. In this paper I discuss a number of those generally used in the context of litigation; some are statements of general principles, akin to the ‘maxims’ of Roman law, others relate more particularly to judicial procedure. Many were actually quoted at trials witnessed by myself or recorded by clerks of tribal courts, the rest were mentioned incidentally by informants when discussing points of Tswana law. The great majority are classed by the people themselves as ‘proverbs’ (diane, sing. seane), and some of these (though not all) are included in the collections of Tswana proverbs published by Plaatje and Seboni; others were introduced simply by some such phrase as Molao ware, ‘The law says’, or Kamokgwa waSetswana, ‘According to Tswana custom’. Since I am not here concerned with their linguistic aspects, I do not attempt to distinguish recognized proverbs from other kinds of maxim.

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MAXIMES JURIDIQUES DE LANGUE TSWANA

Lors de causes jugées par des Cours de justice chez les peuples parlant tswana du Protectorat du Bechuanaland, les juges et autres personnes qui interviennent sur le fond du procès citent souvent des proverbes et autres formules semblables pour indiquer que l'affaire en question tombe sous le coup de la loi et quel aurait dû être le comportement des plaideurs. Ces maximes sont, dans une société sans écriture, l'une des principales sources d'information sur le contenu du code tribal. Leur usage au cours des procès est aussi un important moyen d'apprendre au peuple ce qu'est réellement la loi. Dans cet article sont cités et commentés 82 exemples; ils comportent l'énoncé des principes légaux de base, les règles de responsabilité, de procédure et de témoignage, les sanctions en usage et même quelques exemples de maximes du même genre formulées plus récemment par certains chefs lorsq'ils rendent la justice. La phrase de conclusion apporte des commentaires sur la valeur de cette approche pour l'étude des systèmes juridiques africains.

Type: Research Article
Information: Africa , Volume 36 , Issue 2 , April 1966 , pp. 121 - 134

DOI: https://doi.org/10.2307/1158200 [Opens in a new window]
Copyright: Copyright © International African Institute 1966

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^{page 121 note 1} For the general background, compare my Hand-book of Tswana Law and Custom (1938, new ed. 1955), and, for a discussion of the court records used, ‘The work of tribal courts in the Bechuanaland Protectorate’, African Studies, ii (1943), 27–40Google Scholar.

^{page 121 note 2} Plaatje, S. T., Sechuana Proverbs (1916)Google Scholar; Seboni, M. O. M., Diane le Maele a Setswana (Lovedale, 1962)Google Scholar.

^{page 121 note 3} There is a full (translated) record of this case in my Handbook, pp. 295–8. For the significance of the proverb cited, see below, p. 126.

^{page 122 note 1} Ranko and Rankwana Tau v. Malose Rankwana, Chief's court (Tlokwa), 35/1937 (i.e. Case No. 35 of 1937, unpublished record).

^{page 122 note 2} Ntshadi Marope v. Lebang Marope, Chief's court (Malete), 15/1941. For the proverb cited, see below, no. 5.

^{page 122 note 3} Cf. Schapera, Tribal Legislation among the Tswana (1943).

^{page 122 note 4} Chief Matlala v. Matshediso Segokgo, Chief's court (Tlokwa), 47/1938.

^{page 123 note 1} Kgatla say of a homicide, Orobile marumo akgosi, ‘he has broken the chief's spears’, or, if the victim was a woman, Othubile nkgwana yakgosi, ‘he has smashed the chief's water-pot’.

^{page 123 note 2} Cf. Handbook, pp. 248–50.

^{page 123 note 3} Quoted by Chief Tshekedi when giving judgement in Kaki v. Thogo, Chief's court (Ngwato), 168/1938.

^{page 124 note 1} Quoted by Tshekedi when giving judgement in Kenalemang v. Balatlanye, ibid. 150/1938.

^{page 124 note 2} See below, p. 131.

^{page 124 note 3} Cf. Handbook, pp. 189–90.

^{page 124 note 4} Cf. Handbook, p. 140.

^{page 124 note 5} Cf. Schapera, , ‘Marriage of near kin among the Tswana’, Africa, xxvii (1957), 139–59CrossRef Google Scholar, passim, and ‘Agnatic marriage in Tswana royal families’ (Studies in Kinship and Marriage, ed. Schapera, 1963), pp. 103–13.

^{page 124 note 6} Cf. Handbook, p. 162. Quoted by one of the parties in Ketsehile Mathuba v. Mathuba, Chief's court (Ngwato), 115/1938.

^{page 124 note 7} Cf. Handbook, p. 162.

^{page 125 note 1} Cf. Handbook, pp. 230–6.

^{page 126 note 1} Cf. Handbook, pp. 84–85.

^{page 126 note 2} This proverb is found among all Tswana and many other Sotho peoples, in different textual versions but with the same meaning throughout. However, the late Chief Tshekedi, in discussing it with me, questioned the validity of that explanation (as given, for example, in my Handbook, p. 52), and maintained that among the Ngwato it means just the opposite: foreigners are dealt with leniently at court, and the proverb really refers to their being treated so hospitably that their bowels are always in motion !

^{page 126 note 3} See above, p. 121. Also quoted in Masiko Ramere v. Makgotso Pheko, Mathubudukwane junior tribunal (Kgatla), 8/1936, when the defendant was fined £1 for hitting a woman weeding in a field (‘for going into her field to fight with her’).

^{page 126 note 4} Quoted by Tshekedi when giving judgement in Lesego Malepe v. Nchakge and others, Chief's court (Ngwato), 527/1940.

^{page 127 note 1} Sub-chief v. Tsupatsupa Moatshe and Ramokokole Moatshe, Mathubudukwane junior tribunal (Kgatla), 6/1936.

^{page 127 note 2} In 1913 the Ngwaketse chief Seepapitso awarded claims for debts 17 and 20 years old respectively (Baitse v. Tsalayakgosi and others, Chief's court, 85/1913).

^{page 127 note 3} Quoted by Tshekedi (with the addition of the phrase, gongwe goletwa kgololo yangwana, ‘or one awaits the birth of the child’) in judging a seduction case, Mmantshesane v. Mojamorago, Chief's court (Ngwato), 530/1940. The girl's parents had waited four years before proceeding against her lover, and then, on hearing that he was going to marry someone else, sued him for six head of cattle. Because of their delay, Tshekedi concluded that they were now merely trying to enrich themselves, and he awarded them one beast only.

^{page 127 note 4} Batsopse v. Abotseng Mokue, Chief's court (Ngwaketse), 34/1913.

^{page 128 note 1} Heard (1932) in Mathubudukwane district court (Kgatla), when a man fined by the local sub-chief announced that he would appeal to the chief; one of those present then quoted the proverb and added, ‘Molefi is your headman, you cannot refuse his judgement like this, he is your master, and if he wants to he can punish you.’

^{page 128 note 2} Said by a Ngwaketse man (in Bathoen Gaseitsiwe v. Moranyane Maswabi, Chief's court, 3/1936), to imply that, having been punished by the chief, he saw little hope of success in appealing to the District Commissioner.

^{page 128 note 3} In a Malete case (Mokhaung v. Lechoboloko, Chief's court, 28/1940), a notorious thief sued for defamation of character. He said in court that when his opponent had told him the chief would not listen to him, because of his reputation, he had replied: Kgosi kerrabatho botlhe, mme keitse gore otlaantsheka, ‘The chief is the father of all his people, and I know he will judge me (fairly).’ He was awarded £3 or an ox.

^{page 129 note 1} Quoted by Tshekedi when giving judgement in Amose v. Odisitswe, Chief's court (Ngwato), 177/1938.

^{page 129 note 2} Quoted by the judge in Moipolai v. Gaolebale, Shoshong junior tribunal (Ngwato), 10/1939. In a similar case, Ntsima v. Rasampona and Madikano, Madinare junior tribunal (Ngwato), 29/1940, one of the men in court remarked: Tshenyo yamasimo gaena tsheko epe, mong keene aatlholang jaaka agopola, ‘There is no question at all about damage of (crops in) fields, the owner judges as he thinks fit.’

^{page 129 note 3} Cf. Handbook, p. 259.

^{page 129 note 4} Mosweu v. his wife, Chief's court (Ngwaketse), 2/1912.

^{page 129 note 5} Quoted by Chief Kgari in a divorce case, Raposo v. Alinah, Chief's court (Kwena), 31/1936.

^{page 130 note 1} The rule was stated more explicitly by the Malete chief Ketshwerebothata, when judging a claim for refund of bogadi: Kamokgwa waSetswana, motho fa atlhala, ele mosadi, bogadi boboela monna, ‘According to Tswana custom, when a person, namely the wife, causes a divorce, the bogadi goes back to the husband’ (Robert Mpelane v. Ntanyane Motsumi, Chief's court, 21/1941).

^{page 130 note 2} Cf. Handbook, pp. 294–5.

^{page 131 note 1} See above, p. 124.

^{page 131 note 2} In disallowing a claim for seniority by the child of a leviratic union, Tshekedi remarked: Kgosi eeneng eseke etshaba goganetsa mokgwa keKhama, mme o wagotsalela ooganeditse, ‘A chief who did not fear to resist custom was Khama, and this one, of raising seed [lit., of begetting for someone else] was one that he opposed’ (Toitoi v. Osenyeng and Galegake, Chief's court, 132/1938).

^{page 131 note 3} The discussion with the tribe is summarized as follows in the minutes that Seepapitso kept of his kgotla meetings: [3 June 1913] ‘Question: “I hear it said that if a man has given bogadi, and he parts from his wife while they are childless, the bogadi must be returned.” Reply: “We do not know that custom.” Chief: “Then if such a thing is being done here I now stop it.”’ (Schapera, , The Political Annals of a Tswana Tribe, 1947, p. 68Google Scholar; Tswana text (separately published), p. 29.)

^{page 131 note 4} Matthews, Z. K., ‘Marriage customs among the Barolong’, Africa, xiii (1940), p. 16Google Scholar.

^{page 131 note 5} Cf. p. 130, n. 1, above.

^{page 131 note 6} Cf. Scbapera, op. cit., p. 67 (Tswana text, p. 27). In reply to a question put by Seepapitso about the property rights of widows, the tribe said: Batshwanetse golatolelwa banna babone, kegore reraya baneelwa dikgomo, ‘They ought to be consoled for their husbands' death; that is, we mean that they should be given cattle.’

^{page 131 note 7} Kokole v. Sephuthabakwa, Chief's court (Kwena), 3/1938. The defendant in this case was fined, the cattle he had received were confiscated, and the land in question was returned to the control of his headman.

^{page 132 note 1} Quoted in Modibedi v. Tshokologo, Chief's court (Ngwato), 148/1938, and rephrased as follows by Tshekedi in his judgement: Motho ele motsamai gaatingwe metse, ‘A person who is travelling (with cattle) is not stinted water.’ The defendants in this case were fined an ox each, and ordered to refund the payments they had levied.

^{page 132 note 2} Schapera, Political Annals, p. 91 (Tswana text, p. 42).

^{page 133 note 1} I have discussed this educational aspect more fully in ‘The Sources of Law in Tswana Tribal Courts: Legislation and Precedent’, J. African Law, i (1957). esp. pp. 154–6Google Scholar.

^{page 133 note 2} Schapera, Tribal Legislation, pp. 82–83; the law amplified similar decrees issued in 1915 by Seepapitso (cf. Political Annals, p. 97) and in 1931 by Bathoen himself (Tribal Legislation, p. 82). For similar examples, cf. Tribal Legislation, pp. 81 (Bathoen's law controlling the activities of magicians) and 91–92 (Isang's regulation of beer-drinking among the Kgatla).

^{page 133 note 3} Cf. Political Annals, pp. 32, 51–52, 58, 62, 72, 77, 108; Tribal Legislation, pp. 76, 78.

^{page 133 note 4} Schapera, (ed.), Ditirafalo tsa Merafe ya Batswana (1940), p. 149Google Scholar.

^{page 134 note 1} For example, Buka ya go buisa, Standard V le Standard VI (1941), pp. 110–18; Mogorosi II (1942), pp. 56–62; Padiso ya boraro (1951), pp. 42–43.

^{page 134 note 2} For example, Gluckman incidentally mentions a few in his two books on Lozi law (The Judicial Process among the Barotse, 1955; The Ideas in Barotse Jurisprudence, 1965), though he does not discuss them systematically or in detail.

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