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131

RECENT LEGAL DEVELOPMENTS

BOTSWANA

B.R. DINOKOPILA

1.

ACTS OF PARLIAMENT

1.1

Intelligence and Security Service Act, 2007, Act No. 16 of

2007

This Act is intended to provide for the establishment of several bodies that will be tasked with addressing issues of national security concern. The bodies include the Directorate of Intelligence and Security, the Central Intelligence Committee, the Intelligence and Security Council, a Central Intelligence Community, a Parliamentary Committee on Intelligence and Security and a Tribunal. The Act defines the functions of the aforementioned bodies and provides for such matters connected therewith or incidental thereto.

Part II of the Act provides for the Directorate of Intelligence and Security to be established under the Office of President, I which Directorate shall have several

divisions provided for under section 8 of the Act. The Directorate shaH headed by a Director General who shall be appointed by the President on such terms and conditions as the President may determine.2 The Director General shall be the principal advisor to the President and the Government on matters relating to national security and intelligence and shaH report to the President and the Government on threats and potential threats to national security. He shall further be tasked with ensuring that intelligence collection methods, sources of information and the identity of the members of the Directorate are protected from unauthorised disclosure.3

The functions of the Directorate are outlined in section 5 of the Act and include among other things, the investigation, coordination, evaluation, correlation, interpretation, dissemination and storage of information whether inside or outside Botswana for the purpose of detecting and identifying threats or potential threats to

LL.B (Botswana), Teaching Assistanl, Department of Law, University of Botswana.

I Section 4 (1) of the Intelligence and Security Service Act No. 16 of 2007, on notice.

2 Section 6 (1) Ibid.

3 Section 7 Ibid.

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national security. It will carry out security vetting and clearance of persons who hold certain posts or who have or may have access to any sensitive or classified information.4 The Directorate is further tasked with making recommendations to the President in connection with policies concerning intelligence and security, intelligence and security priorities and security measures in Government ministries, departments or agencies.s Another function of the directorate will be to provide personal protection to the President, Vice President and their immediate families; and former presidents and their spouses, who shall be protected by officers appointed under section 9 of the Act. 6

Threats to the President, Vice President and former presidents, and their immediate families constitute an offence punishable by imprisonment for a term not exceeding ten years.7

Section 21 of the Act provides that an officer or support staff authorised in that behalf by the Director General may, without warrant, arrest a person he or she reasonably suspects that the person has committed or is about to commit an offence referred to in the Act. Where reasonable grounds exists that a warrant is required to enable the Directorate to investigate any threat to national security or to perform any functions under the Act, the Director General shall apply to a senior magistrate or judge of the High Court for such a warrant.s However, where the Director General and/or his authorised staff considers that special exigencies of the case so require they may cause to be entered, without obtaining a search warrant from one of the abovementioned persons, the premises, place, vessel, boat, aircraft or other vehicle to search, seize andl or detain such article, document or package.9

The Act at section 25 establishes the Central Intelligence Committee, which shall consist of the President (Chairperson),Vice President, Minister of Presidential Affairs and Public Administration, Minister of Foreign Affairs, Permanent Secretary to the President, the Attorney- General, the Director General of Security and Intelligence, Commissioner of Police and the Deputy Commander of the Botswana Defence Force. The committee will be responsible for guiding the directorate on all matters related to national security and intelligence interests, to approve intelligence and security assessments and to advise the President on appropriate action to be taken, or policies to be formulated, in the interest of national security,tO

4 Section 5 Ibid.

5 Section 5 (I) (I) Ibid.

6 Section 5 (I )(g) Ibid.

7 Section 41 Ibid.

8 Section 22 (I) Ibid.

9 Section 22 (3) Ibid.

10 Section 26 (l) Ibid

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RECENTLEGALDEVELOPMENT-BOTSWANA 133

Part IV of the Act provides for the establishment of the National Intelligence Community which will be chaired by the Director General of Security and Intelligence.

It will have representation from the Crime Intelligence Bureau, Military Intelligence, Foreign Affairs, Directorate on Corruption and Economic Crimes (DCEC), immigration and Botswana Unified Revenue Services. I! The committee is meant to

review and coordinate intelligence and ensure that there is inter-agency exchange of information. 12

The Intelligence and Security Council to be established under section 29 (Part V) of the Act will consist of the Permanent Secretary to the President, the Attorney-General, the Director General of Security and Intelligence and the Deputy Director General. The Deputy Director General is also designated as the secretary to the Intelligence and Security CounciL The Council will review intelligence policies and activities and examine expenditure, administration and complaints levelled against the directorate. 13

There is further established under the Act, the Parliamentary Committee on Intelligence and Security tasked with examining the expenditure, administration and policy of the Directorate. 14 The Parliamentary Committee shall have the same powers and privileges set out under the National Assembly (Powers and Privileges) Act (Cap: 02:05)15 and shall consist of nine members who shall not be members of Cabinet. 16

There is established under Part VI of the Act, a Tribunal which will be tasked with receiving complaints from persons who feel aggrieved by an act or omission of an officer of the Directorate. 17 The Tribunal established shall be chaired by either a Judge of the High Court, a retired High Court Judge or a legal practitioner qualified to be appointed as a High Court Judge. IS It shall consist of two other members, one of whom

shall be a person with considerable knowledge of the subject matter of the complaint and operation of security agencies.19 The Tribunal established shall make an annual

report on the discharge of its functions to the Minister responsible for intelligence and security,20 which report shaH be presented to the National Assembly together with a statement as to whether any matter has been excluded from the report.21

II Section 27 (I) Ibid

12 Section 28 (I) Ibid 13 Section 30 Ibid.

14 Seclion 38 Ibid.

15 Section 38 (2) Ibid. 16 Section 39 Ibid.

17 Section 31 Ibid.

18 Section 31 (2) Ibid,

19 Section 3 I (2)(b) Ibid, 20 Section 37 ibid.

21 Section 37 Ibid.

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1.2

Motor Vehicle Accident Fund Act, 2007, Act No. 15 of 2007

This Act seeks to re-enact with amendments, the Motor Vehicle Accident Fund Act (Cap. 69: 02) in order to better provide for the award of benefits for all victims of road accident. The Act achieves this by shifting the focus of the previous Act from third party cover and indemnification of negligent drivers, to the victims of vehicle accidents, by making better provisions for their medical care, rehabilitation and compensation.22

The main provisions of the new legislation are under part VII of the Act which deals with the liability of the fund. As aforementioned, the Act shifts focus from third party cover to victims of vehicle accidents. Thus, section 20 of the Act provides that any claimant who suffers loss as a result of injury of himself or herself caused by the driving of a motor vehicle by any person including the person who has suffered the said loss shall be entitled to claim the benefits prescribed by the Act from the Fund. Until the enactment of this Act, compensation has been awarded only to those involved in accidents caused by negligent driving.

Such benefits to be provided by the Fund shall be confined to a monetary award for medical care, rehabilitation and compensation. The benefits that accrue under the Act include payment for medical and rehabilitation expenses, payment for loss of income, compensation for loss of support, payment of funeral expenses and incidental expenses.23

Section 29 of the Act provides that the claim should be submitted within three years of the accident. A claim will thus become prescribed upon the expiration of a period of three years calculated from the date of the vehicle accident giving rise to the claim. However, the period of prescription shall not run against minors and persons suffering from mental disorders in terms of the Mental Disorders Act as well as mental disorders caused by the effects of the injuries sustained in the vehicle accident giving rise to the claim.24 Further, following the prescription of a claim, the court may grant the claimant concerned the right to institute an action for the award of compensation. Such an application must be brought not later than three months after the claim became prescribed and the claimant must provide security for costs to the satisfaction of the court. The court will only grant such an order if it is satisfied that

22 Supplement B- Botswana Government Extrnordinary Gazette dated 13 July, 2007.

23 Section 20 (2) (a-j), Motor Vehicle Accident Fund Act, 2007, Act No. 15 of 2007, on notice.

24 Section 29 (2) Ibid.

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RECENTLEGALDEVELOPMENT-BOTSWANA 135

the there exists special circumstances that led to the claim becoming prescribed. 25 The major I imitations imposed under the Act are found under section 22. The benefits for loss of income otherwise payable by the Fund in respect of the driver of a vehicle involved in an accident shall be reduced by fifty percent if the alcohol level of the driver exceeds the prescribed leveJ.26 A passenger's benefits for loss of income accruing under the Act shall also be reduced by fifty percent where such passenger was aware of the driver's drunken stateY

The benefits for loss of income otherwise payable shall be reduced by twenty-five percent where at the time of the accident the seatbelt was not utilised, or the victim was not seated in a proper seat, or not wearing a helmet on a motor cycle.28 Loss of earnings is also reduced by fifty percent for a driver of an unlawfully possessed or used motor vehicle irrespective of whether or not such unlawful acts contributed to the accident.29

Section 22 (1) of the Act provides that, where the person injured is a minor below the age of seven, the limitations and exclusions pertaining to capacity or culpability shall not apply. However, in the case of minors between the ages of seven and fourteen years, the common law rules as to capacity or culpability shall apply.30

Most importantly, the Act provides that the Fund shall have the right to recover benefits paid to any person as compensation if at the time of the accident such person was, inter alia, under the influence of intoxicating liquor or drugs, was driving the vehicle recklessly, was driving without a valid driving licence, was driving a defective vehicle and such defect caused or contributed to the accident and/or was driving a stolen vehicle or ought to have known that such vehicle was stolen.3

!

2.

REGULATIONS, ORDERS AND RULES

2.1

Controlled Hunting Areas (Amendment) Order, 2007, Statutory

Instrument No. 65 of 2007

This order was made by the Minister of Environment, Wildlife and Tourism and amends the fourth schedule to the Wildlife Conservation and National Parks Act

25 Seclion 29 (4) Ibid. 26 Section 22 (4) Ibid. 27 Seclion 22 (5) Ibid. 28 Seclion 22 (6) Ibid, 29 Seclion 22 (8) Ibid, 30 Section 22 (2) Ibid.

31 Section 30 Ibid.

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(Cap 38:01) by substituting, the Controlled Hunting Area for Ngamiland ( NG/I to NG/52) with the new entries for the Controlled Hunting Area boundary descriptions for Ngamiland (NGII to NG/52).32

2.2

Botswana International University of Science and Technology

Act (Date of

Commencement) Order, 2007, Statutory

Instrument No. 40 of 2007

This order appoints the 1 November 2006 as the date on which the Botswana International University of Science and Technology Act (Act No.3 of 2006), 2005, shall be deemed to have come into force.33

3.

BILLS

3.1

Domestic Violence Bill, 2007· Bill No. 15 of 2007

The object of the Bill is to provide protection for the survivors of domestic violence and for matters connected therewith.:l4 It thus seeks to set up the legal framework within which survivors of domestic violence will be protected.

The Bill refers to the person who claims to be the victim of an abusive act as the applicant and any person whom an order is being sought against as the respondent.35

Section 2 of the Bill defines domestic violence as controlling or abusive behaviour that harms the health or safety of the applicant. Domestic violence therefore includes physical abuse, sexual abuse, emotional, verbal or psychological abuse, economic abuse, intimidation, harassment, unlawful detainment, damage to property, stalking and where the parties are not staying in the same home, entry into the applicant's home without his or her consent.36 The section goes on further to define the types of

domestic violence enumerated above in depth.

Section 2 further defines the term "domestic relationship" as mentioned in the Act. Accordingly to it, a "domestic relationship" means a relationship between people who are married to each other, children of either of the parties, family members

32 Supplement C- Botswana Government Gazzette dated 28 September, 2007.

33 Supplement C-Botswana Government Gazzette dated 13 July, 2007; See, Bojosi, K.N and Waibale-Muganga A .•

Recent Legal Developments-Botswana. 3 UBU (2(}()6). pp. 109-111 for a detailed discussion of the provisions of this

Act.

34 Supplement B- Botswana Government Gazzene dated 13 July, 2007. 35 Section 2, Domestic Violence Bill. 2007, Bill No. 15 of 2007.

36 Section 2 (a -j) Ibid.

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RECENT LEGAL DEVELOPMENT - BOI'SWANA 137

related by affinity or blood and where the parties share the same residence. Most importantly, the Bill provides that a domestic relationship will be said to exist where the applicant and the respondent are cohabiting.11 This is a welcome development as most people nowadays cohabit for a number of years before getting m.anied and a number of them are bound to be involved in abusive relationships.

Part II of the Bill provides for orders that the applicant may make to the court to prohibit a person from committing an act of domestic violence. An applicant may make an application to the court for an interim order,38 restraining order, occupancy orderW or a tenancy order.40 The application may be brought on behalf of the applicant by any of the persons listed under section 7(6) of the Bill. Such an application must be accompanied by the usual founding affidavit by the applicant and must comply with the requirements set out under section 7 (2) (2) (a-e). Section 12 provides for the validity of the order given out pursuant to such an application whist section 13 provides for variation and revocation of the order sought and obtairied under the preceding sections.

Section 6( 1) of the Bill provides that proceedings under the Bm shall be heard

as civil proceedings as between the parties and shan be heard in camera. 41 Curiously, the Bill does not create any offence in respect of domestic violence and it might be assumed that such will stiJI be chruged under the Penal Code and pigeonholed under the various types of assault The idea, it would appear, was to make a preventative measure instead of a mechanism that would protect persons from domestic violence

and punish those who commit these hideous crimes. The Bill in its current form does not address the issue of marital rape despite the same being concomitant to domestic violence. A person who contravenes the provisions of the Bill shall be guilty however, of an offence and is liable to a fine not exceeding P 5

000.00

or to imprisonment for a term not exceeding two years or both.42 This is the only offence-creating section under the Bill.

Part

m

contains general provisions dealing with third party interest in property that bas been affected by an order made under the Bill, the use of personal effects such as furniture and the effect of the order made under the Bm on such property.

31 Ibid. 38 Section 9 Ibid. 39 Section 10 Ibid. 40 Section 11 Ibid. 41 Section 6(1) (b) Ibid.

42 Section 19 Ibid.

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3.2 Judges (Miscellaneous Provisions) (Amendment) (No.2) Bill,

2007-Bill No. 18 of 2007

The two-section Bill seeks to amend the Judges (Miscellaneous Provisions) Act by amending Section 2 thereof, with the object of increasing the fees and allowances of judges of the Court of Appeal.

3.3 Cyber Crime and Computer Related Crimes Bill, 2007- Bill

No. 17 of 2007

The main object of the Bill is to combat cybercrime and computer-related crime, to repress criminal activities perpetrated through computer systems and to facilitate the collection of electronic evidence.43

Part I of the Bill sets out the circumstances under which the courts of Botswana shall have jurisdiction in relation to any act done or omission constituting an offence under the proposed Act, or any regulations made under it.44 Part II of the Bill makes provision for the types of offences covered under the proposed Act. These include unauthorised access to a computer, computer system,45 or computer service.~Access

to a computer or computer system with the intent to commit an offence constitutes an offence under the proposed Act.47 Unauthorised interference with data,4S computer or computer system,49 unlawful interception of data also constitutes an offence under the proposed Act. so Unlawful possession of devices or data designed to commit an offence under the proposed Act,S' unlawful disclosure of a password,52 damage to the computer or computer system by intentionally introducing a computer contaminants3 also amounts to an offence under the proposed Act.

Section 13 of the Bill provides for the protection of computers or computer systems used directly in connection with the security or international relations of

43 Supplement B· Botswana Government Gazzene dated 28 September, 2007. 44 Section 3, Cybercrime and Computer related crimes Bill. 2007. Bill No. 17 of 2007. 45 Section 4 Ibid.

46 Section 5 Ibid. 47 Section 6 Ibid. 48 Section Ibid. 49 Section g {bid. 50 Section 9 Ibid. 51 Section 10 Ibid. 52 Section Illbid. 53 Section 12 Ibid.

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RECENTLEGALDEVELOPMENT-BOTSWANA 139

Botswana. Other crimes under the Bill include cyber extortion,54 cyber fraud55 and

electronic trafficking of pornographic and obscene material.S<> Further, a person who by means of a computer or computer system, communicates with a person who is, or believes is under the age of 18 years, for the purpose of facilitating the commission of the offence of child pornography or prostitution, rape or indecent assault under the Penal Code57 commits an offence under the Bill. 58

Part III deals with procedural powers under the proposed Act. Sections 20, 22 and 23 make provision for a police officer to apply for a preservation order, a production order, and an order to enter any premises to access, search and seize any data, respectively. Section 27 deals with the appointment by the minister of officers who will be authorised to monitor and inspect any web-site or activity on an information and communication service in the public domain.

Part IV deals with miscellaneous matters. Section 30 provides for an offence under the proposed Act to be considered an extraditable crime, whereas section 31 deals with the minister's powers to make Regulations under the proposed Act.

3.4

Bogosi Bill, 2007- Bill No. 13 of 2007

The object of the Bill is to re-enact with amendments the law relating to the Bogosi (Chieftainship) and matters incidental thereto.59 The Bill, which has come under heavy criticism, seeks further to realign the law relating to Bogosi with the constitutional provisions, especially those relating to the composition and membership of the Ntlo ya Dikgosi (House of Chiefs).60 Section 29 of the Bill also repeals the Chieftainship Act.61

However, section 30 of the Bill provides that nothing in the Bill shall be construed as derogating from or affecting the validity of the Tribal Territories Act.62

The amendment also seeks to effect changes in the nomenclature relating to Bogosi, in the light of the recommendations made by the High Court in the case of Kamanakao and Others v The Attorney- General and Others.63 Section 2 of the Bill thus seeks to amend section 2 of the Chieftainship Act by redefining, the word "tribe"

54 Section 14 Ibid.

55 Section 15 Ibid.

56 Section 16 Ibid.

51 Cap. 08:01

58 Section 16 (4)(a) Ibid.

59 Supplement B· Botswana Government Extraordinary Gazelle dated 8June, 2001.

60 Constitution (Amendment) Act, 2005 (No.9). which amended sections 17. 78 and 79 of the Constitution.

61 Cap41:01.

62 Cap. 32: 03

63 Kamanakao I and Another v. AllOrney-General2002 (I) BlR 110 (He).

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to give it a wider and all-embracing meaning to include all tribes. The opportunity has also been taken to render the provisions of the Bill gender neutral.

Part IV of the Bill provides for the functions of Dikgosi (Chiefs) which include, inter alia, admission of membership into tribes,64 arrangement of tribal ceremonies and adjudication of cases io tenns of the warrant his or her court has been issued with under the Customary Courts Act.65 Further, the Kgosi is tasked with

ensuring the prevention of crime within his or her tribal area.66

Part II of the Bill deals with the recognition of a tribal community as a tribe by the Minister. According to section 3(2) of the I!iH, the minister shall take into account the history, origins, and organisational structure of the community, and any other relevant matters when so doing.

Part ill deals with the recognition and removal of Dikgosi. Section 4 defines a Kgosi as a person who posses such minimum qualifications as may be prescribed, has been designated chief under section 6 and is recognised as a chief by the mioister in accordance with the provisions of sections 6 and 21. Under section 6, the tribe and some senior members have to assemble in the KgotLa to designate the rightful successor to the Bogosi according to customary law or established nonn and practice of that tribe. Under section 21 of the Bill the minister may recognise a person who has been designated as a Kgosi by the tribal community as Kgosi and, may, where he or she considers it appropriate, in like manner withdraw such recognition.

If any question arises as to whether a person appointed under Section 6 is the rightful successor to the Bogosi, or is a fit and proper person to be so recognised, the minister may appoint a judicial commission to look into the matter.67 Upon

receipt of the report by the commission ... the minister shall determine the question which has fallen for detennination and shall make such decision as he or she may deem to be appropriate.68 Section 10 of the Bill provides that the appoiotment of a

Mothusa Kgosana (Chief's Assistant) by the Kgosi shall be subject to the approval of the minister.

Section 13 of the Bill provides for the suspension or removal of the Kgosi by the minister from his or her position as chief of a tribe in certain specified circumstances. Where the Kgosi has been suspended by the mioister and after the holding of an inquiry on the matter, if the minister is of the view that it is io' the best interest of peace, good

64 Section 18, 8ogosi Bill. 2007. 8iU No. 13 of 2007. 65 Section 17 Ibid.

66 Section 19 Ibid. 67 Section 9 Ibid. 68 Section 9 (2) Ibid.

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RECENT LEGAL DEVELOPMENT -BOTSWANA 141

order and governance to do so, depose such Kgosi or extend the suspension for a period not exceeding five years.69 Such decision of the minister is subject to appeal to the President within two months of the giving of the decision which order shall not operate as a stay of execution of any order made by the minister.70

Part VI deals with miscellaneous matters. Section 23 deals with the tenure of office of Dikgosi and the retirement age, whilst section 24 of the Bill deals with the training of Dikgosi and provides that a person who holds an office as a Kgosi shall not proceed on any course or training without the approval of the minister. Section 25 of the Bill makes it an offence for someone to undermine the lawful power and authority of a Kgosi. Most noticeably is section 27 of the Bill which provides that notwithstanding any provision in any enactment to the contrary, no court shall have jurisdiction to hear and determine any matter affecting Bogosi.

4.

Judicial Decisions

4.1

Constitutional Law

Monica Tirelo v The Attorney General and Doris Bosadibo Moleu, High Court, Case No. MAHLB-000405-06 (unreported)

The applicant was granted an interim order on certificate of urgency, staying the proceedings in Tlokweng Customary Court between the applicant and the second respondent, pending the determination of the main application, in which an order was sought, inter alia. declaring that the applicant w.as entitled to have her case heard and determined by a court of competent jurisdiction where she can be legally represented.

It was the applicant's argument that the right to protection of the law guaranteed by section 3 of the Constitution, and the right to receive a fair hearing in terms of section 10 (9) conferred the right to legal representation not only to accused persons in criminal matters, but by necessary implication conferred the right upon litigants in civil proceedings as well. Hence, the Customary Court of Appeal's refusal to transfer her case, upon demand made in terms of section 37 of the Customary Courts Act,1J to a Magistrates Court or other court had the potential of violating her right to legal representation conferred upon her by the Constitution.

69 Seclion 13 (3) Ibid.

70 Section 14 Ibid. 71 Cap 04:05

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The High Court dismissed the application on the ground that indeed in both civil and criminal proceedings every litigant is guaranteed "a fair hearing within a reasonable time by an independent and impartial court." That in the case of criminal proceedings, additional rights are given to persons charged, by sections 10 (2) to

to

(8) of the Constitution. That the Constitution under section 10 (2) (d) confers, in criminal trials, a right upon an accused person to be represented at their own expense by legal practitioners of their choice, although the right is not absolute. Further, that there is no similar constitutional right conferred in respect of civil proceedings in any court at present. The court held that these rights are not accorded, or certainly not with the same specificity, to litigants in civil proceedings.

It was further held that the plaintiff as the dominus titus has the right to choose which forum to ventilate her rights and since there is no right to legal representation in civil matters, it is the interests of two competing citizens which need to be weighed in the balance to reach a decision which is in the interests of justice. That in the present case it was not in the interest of justice to accede to the applicant's request for a transfer solely on the grounds that she wishes to be represented by a lawyer. It would

be financially and strategically unfair on the plaintiff, who has chosen her court, and would trespass upon her constitutional rights as well (the right to fair hearing within a reasonable time).

His Lordship, Justice Ian Kirby, concluded by pointing out that, notwithstanding the fact that the right to legal representation in civil matters is not expressly guaranteed under the Constitution, there will be circumstances where it is in the interests of justice to transfer a civil case from the customary courts to either the magistrate court or High Court. Hence, it will be the interests of justice that must be the determining factor in the Customary Court of Appeal's decision whether to transfer the case to some other court or not.

4.2

Intellectual Property • Passing-Off

AC Braby (Botswana) (Pty) Ltd and Band T Directories (Pty) Ltd v Botswana Telecommunications Corporation, Court of Appeal Civil Appeal No. CACLB-007-06 (Court of Appeal decision) (Unreported)

By notice of motion, the respondent (BTC) applied to the High Court for certain relief, including a number of interdicts relating to the threatened use by the appellants of the term "yellow Pages" in or in connection with the publication of the projected classified telephone directory. Further, they sought an interdict estopping

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RECENT LEGAL DEVELOPMENT· BOTSWANA 143

the appellants from using other expressions tending to suggest that the projected directory would be the continuation of a series of previous Yellow Pages published as part of the respondent's telephone directory. BTC in its application papers alleged that the words "Yellow Pages" have in Botswana evolved into a common law trade mark whose ownership and goodwill belonged to it. The first appellant (AC Braby) on the other hand, contended that the words "Yellow Pages" were a standard world-wide reference to the classified section of a telephone directory and that the term was not distinctive in relation to the business and/or goodwill of BTC.

The sole issue that fell for determination in the main was therefore whether the words "Yellow Pages" had in Botswana evolved into common law trade mark which the first appellant attempted to pass off. Thus, whether BTC has exclusive right to use the expression "Yellow pages" in Botswana and is entitled to restrain AC Braby from taking advantage of such reputation and goodwill attaching to the expression by passing off their directory as if it were a product of BTC.

In resolving this issue, the Court a quo relied on the contract between the parties and came to the conclusion that the directory was the property of BTC. It

followed then, held the Court, that since the classified section belonged to BTC, the words "Yellow Pages", too belonged to BTC, because the classified section in the directory had come to be known in Botswana as the "Yellow Pages". The court accordingly granted an interdict in favourofBTC.n

However on Appeal, the Court of Appeal held that BTC had to establish that the two words "Yellow Pages", had acquired such reputation or goodwill which would otherwise be injured by the use of the words and which is exclusive to or distinctive to BTC. The Court of Appeal thus rejected the court a quo's conclusion that ownerShip of the directory itself was a significant factor if not determining factor in deciding whether BTC had established the distinctiveness necessary to entitle them to an interdict againstAC Braby. The court thus pointed out that what can be protected is not a name per se but the goodwill connected with or represented by the name, hence the Court a quo erred in treating the fact that BTC owned the directory as conclusive.

It thus proceeded to apply the general principles governing the wrong of passing off. After reviewing all the evidence and submissions put before it, the court held that BTC had failed to establish a clear right to interdict AC Braby from using the words "Yellow Pages". It concluded that a survey of the actual use of the words

72 See, Bojosi K.N and Waibale-Muganga A .• Recent Legal Developments-Botswana. 3 UBU (2006), pp. 121-123 on a

discussion of the High Court decision.

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in advertising and in the titles to the BTC directory indicated that the words have from time to time been used with different qualifying adjectives and in different associations. Hence BTC had failed to establish that the words yellow pages were exclusive and distinctive to it. It accordingly set aside the decision of the High Court and allowed the appeal with costs.

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References

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