This case concerned four elderly sisters all aged beyond 65 years, namely Edith Mmusi, Bakhani Moima, Jane Lekoko, and Mercy Ntsehkisang. The applicant sister’s main contention and disputation was that they were at liberty and entitled to inherit the family dwelling which had belonged to their late father. They supported this assertion with the argument that they had used their own funds to preserve and renovate the property, and had even taken care of their late mother in the same homestead prior to her death. Their claim was challenged by their half-brother’s son, Molefi Ramantele, who in turn argued that under Ngwaketse customary law, the family home was only inherited by the youngest son and thus he was entitled to inherit as his father’s heir. The case was initially heard by the Lower Customary Court which found in favour of Ramantele. The matter was appealed to the Higher Customary Court, which subsequently found that the homestead belonged to the sisters. It was then additionally appealed by Ramantele to the Customary Court of Appeal which ordered Mmusi to vacate the family home. The Customary Court of Appeal held that as under the customary law rule, the exclusion of women from heirship was in keeping with a deep-rooted cultural system dominated with partriarchy and as such the house belonged to Ramantele as the sole surviving male heir.
The applicant sisters then appealed the decision of the Customary Court of Appeal to the High Court. They maintained and expostulated that the said rule of customary law is unconstitutional in so far as it dishonoured the right to equal protection of the law or equality in terms of S.3 (a) of the Constitution of Botswana . The High Court examined Ms. Mmusi’s claim in the light of section 3(a) of Botswana’s Constitution, which “guarantees every person in Botswana fundamental rights and freedoms without distinction as to their race, place of origin, political opinions, colour, creed or sex. ” It carefully considered whether the customary inheritance rule was an infringement of the right to equality as envisaged in the statute and, if so, whether there was any legitimate reason and rationalization for this inequality. In doing so, the High Court had to investigate Botswana’s international and regional obligations as well as examples from other jurisdictions, such as Ghana, Tanzania, and South Africa that had dealt with similar issues of discriminatory customary laws in conflict with constitutional equality provisions .
The High Court held that the Ngwaketse custom of only transferring family homes to the youngest son was unconstitutional. The presiding Judge, Key Dingake, noted in his judgement of the need for a movement toward ending gender discrimination based on customary inheritance laws in Africa. Judge Dingake asserted that “The time has now arisen for the justices of this court to assume the role of the judicial midwives and assist in the birth of a new world struggling to...