In traditional Tswana society there was an over-emphasis on ‘marriage’ as constituting the basis of the family. Thus it was rare for a man and a woman to raise children together outside wedlock. Where a child was born outside wedlock, such a child was not recognised by the man’s family as being one of them until the parents of the child married each other. Indeed, the discrimination and plight of children whose parents were not married to one another was entrenched in our Tswana society. These children were often derogatorily referred to in Setswana as ‘bana ba dikgora’, which literally translates to ‘children of the fence’.^[1]

As pointed out by the former Attorney General Ms. Molokomme, the fathers of such children are said to have ‘broken through the fence’, instead of walking in openly through the normal entrance to the woman’s parents compound. The phrase on its own is derogatory and in a sense, denotes illegitimacy. The use of this phrase has over the years caused such children to be subjected to differential treatment from their counter-parts and this extended to being denied the right to inherit from their fathers in terms of customary law.

This objectionable treatment of children born out of wedlock was rationalised and justified on the basis of it discouraging men and women from bearing children outside of marriage. This argument and line of thought for many years carried the day. (See for example the work of Professor Schapera at p.169 of his book ‘A hand book of Tswana Law and Custom’ published as far back as 1938). The late Chief Justice Julian Nganunu (may his soul rest in eternal peace) also expressed the following in the case of Hendrick v Tsawe^[2]:

an ‘illegitimate’ child could not inherit from his father. Only the children born in marriage or legitimised by subsequent marriage or by adoption can inherit the property of their father’.

He further held as follows:

Despite certain modern developments in some countries in the world, I think it is still correct that marriage is the critical legal step that ought to take place in order to bind a man and a woman together and make them husband and wife; thus, forming a legally recognised unit as a family. By and large the children born out of that union are regarded as entitled to the protection and support of their parents until they can fend for themselves. And on the death of one of their parents, those children are entitled to a share of the estate of the couple; or such part of it as is then distributable as an inheritance. Children born outside marriage are not treated like and do not have the same rights in inheritance as children born within the marriage’. (my emphasis)

Be that as it may, the contemporary social reality in Botswana is however completely opposite to the position as it was in the past, in that extra-marital parenthood has become more common and generally accepted. The question is; can we then, as a modern society, in the midst of this fundamental change, conveniently close our eyes to all notions of good conscience and justice and continue to arbitrarily exclude children born out of wedlock from inheriting from their fathers all in the name of ‘safeguarding traditional family life’? The answer to that vexing question is an emphatic NO!

In the case of Baone Kealeboga & Another v Tidimalo Mercy Kehumile & Another,^[3] the Court of Appeal delivered a ground-breaking judgment in that it recognised for the first time in Botswana, the rights of children born out of wedlock as being equal to their counterparts born in wedlock.

The brief facts and decision of the court of appeal

The appellants, born out of wedlock to Charles Kehumile and Keamogetse Kealeboga, contended before the High Court that they had the right to inherit from the estate of their father. On the other hand, the respondents, who are the deceased’s siblings, argued that the appellants could not inherit from their father as they were born out of wedlock. The High Court found against the appellants and restated the old principle that an illegitimate child cannot inherit from his father’s estate.

Aggrieved by this decision, the appellants appealed to the Court of Appeal where the Court per Legwaila JA (may his soul rest in peace) categorically stated that it is unfair and unjust for children born out of wedlock to be arbitrarily excluded from inheriting from their fathers on the basis of ‘outdated and demeaning description-illegitimate’ The Court further reasoned that denying children the right to inherit from their father on the basis that they were born out of wedlock was inconsistent with the provisions of Section 2 of the Customary Law Act (Cap 16:01)  which enjoins the Court to ensure that the application of customary law is not inconsistent with the principles of ‘morality, humanity and natural justice.’

In conclusion, it is submitted that the Court of Appeal in the Kealeboga case has taken a bold step which was long overdue by sweeping in final fashion, the old rule that children born out of wedlock cannot inherit from their father. This judgment also underscores the fact that customary law is not static but evolves as the people who live by its imperatives change.