University of Botswana
Civil Procedure & Practice
Make-Up Test
Course Code: LAW331
, In light of the jurisdiction of the superior courts of records, discuss the legality and
constitutionality of rule 44 (4) and (5) of the court of appeal rules.
Introduction
The classification of the courts into superior courts of record and inferior courts not of record
contributes significantly to the simplified determination of the jurisdiction of the courts. 1 The
constitution of Botswana gives a circumlocutory definition of a superior court under Section 127
which provides thus, “a subordinate court means any court established for Botswana other than
the Court of Appeal, High Court and Court Martial or the Industrial Court.” In this way, it is safe
to state that the Court of Appeal is a superior court of record in that in exercising its jurisdiction
the court is not limited either by the value of the subject matter in question nor it is restricted
geographically. The amenable supervisory role played by the court of appeal towards the
decisions of the High Court augments the stance that indeed the former is a superior court of
record.
This paper is an attempt to critique the jurisdiction of the Court of Appeal as a superior court of
record. In doing this, the paper confines itself to powers of the court of appeal in criminal cases
especially with regard to death sentence as encapsulated under Rule 44 (4) and (5) of the Rules
of the Court of Appeal Act, (2018). The paper questions the constitutionality of Rule 44 and
assesses its compliance to the fundamental criminal law principle of legality.
Outline of further discussion
The Concept of Jurisdiction
Jurisdiction is the power or competence of the court to hear and determine an issue between
parties2. A court can only be alleged to possess jurisdiction in a matter if it has the power, not
only of taking notice of the suit but also, giving an outcome to the judgment. A party has to
decide whether the right court has been selected in cognizance of the type of claim concerned for
two key reasons. In the case of STYTLER v. FITSGERAD 19113, court also defined
jurisdiction; DE VILLIERS J. stated as follows: “A court can only be said to have jurisdiction in
a matter if it has the power not only of taking cognizance of the suit, but also giving effect to its
1
C M Fombad and E. K Quansah, “The Botswana Legal System” (2006) LexisNexis Butterworths. Durban.
2
G.M. Kakuli, Civil Procedure and Practice in the High Court of Botswana. 2nd edition
3
(1911) AD 295. 346
Civil Procedure & Practice
Make-Up Test
Course Code: LAW331
, In light of the jurisdiction of the superior courts of records, discuss the legality and
constitutionality of rule 44 (4) and (5) of the court of appeal rules.
Introduction
The classification of the courts into superior courts of record and inferior courts not of record
contributes significantly to the simplified determination of the jurisdiction of the courts. 1 The
constitution of Botswana gives a circumlocutory definition of a superior court under Section 127
which provides thus, “a subordinate court means any court established for Botswana other than
the Court of Appeal, High Court and Court Martial or the Industrial Court.” In this way, it is safe
to state that the Court of Appeal is a superior court of record in that in exercising its jurisdiction
the court is not limited either by the value of the subject matter in question nor it is restricted
geographically. The amenable supervisory role played by the court of appeal towards the
decisions of the High Court augments the stance that indeed the former is a superior court of
record.
This paper is an attempt to critique the jurisdiction of the Court of Appeal as a superior court of
record. In doing this, the paper confines itself to powers of the court of appeal in criminal cases
especially with regard to death sentence as encapsulated under Rule 44 (4) and (5) of the Rules
of the Court of Appeal Act, (2018). The paper questions the constitutionality of Rule 44 and
assesses its compliance to the fundamental criminal law principle of legality.
Outline of further discussion
The Concept of Jurisdiction
Jurisdiction is the power or competence of the court to hear and determine an issue between
parties2. A court can only be alleged to possess jurisdiction in a matter if it has the power, not
only of taking notice of the suit but also, giving an outcome to the judgment. A party has to
decide whether the right court has been selected in cognizance of the type of claim concerned for
two key reasons. In the case of STYTLER v. FITSGERAD 19113, court also defined
jurisdiction; DE VILLIERS J. stated as follows: “A court can only be said to have jurisdiction in
a matter if it has the power not only of taking cognizance of the suit, but also giving effect to its
1
C M Fombad and E. K Quansah, “The Botswana Legal System” (2006) LexisNexis Butterworths. Durban.
2
G.M. Kakuli, Civil Procedure and Practice in the High Court of Botswana. 2nd edition
3
(1911) AD 295. 346
