Three sisters brought legal action against their nephew’s right to inherit their family’s home under customary inheritance laws. In Botswana, the customary inheritance laws favored descendants who were male only. The customary law, which is a law where a certain legal practice is observed, and the actors -or the people, or group of people, who have established these special standards for their community- consider it to be law.
This particular law that was brought for review before the Court emerged from the Ngwakestse tribe. It pronounced that the last born male child would inherit the family home of a deceased individual; any other property that was left for distribution would then be divided among all the children, without any regard for gender.
Justice Dingake, of the High Court of Botswana, ruled that the local customary laws, which gave priority and absolute rights to male inheritance, were in direct conflict with notions of equality and justice established and codified in the Constitution of Botswana. He awarded the home to the sisters, stating in his judgment: “It seems to me that the time has now arisen for the justices of this court to assume the role of the judicial midwife and assist in the birth of a new world struggling to be born. Gender discrimination has no place in our modern day society.”
The judicial decision can be downloaded in its original version in English.