JURISPRUDENCE, ETHICS AND MEDICAL LAW JLE 470

CLASS NOTE 1MEDICAL LAW

OBJECTIVES
After studying this chapter you should understand the following main points:

The ways in which the law may be classified, including the differences between public and private
law, civil and criminal law and common law and equity;

The basic principles of legal liability, such as the distinction between civil and criminal liability.

The sources of law in Botswana

The hierarchy of the courts in Botswana.

Difference between criminal and Civil law.

The principles of tort law and examples of tort law

DEFINITION OF LAW
Law is defined as the rules made by humans which regulate social conduct in a formally
prescribed and legally binding manner. It could be said to refer to some written and unwritten
rules derived from customs and as formal enactment which are recognized by the people as
binding on them and could be imposed upon them by some appropriate authority.
SOURCES OF BOTSWANA LAW

The Constitution

Customary law

Common law

Legislation

Judicial precedent

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CONSTITUTION
The constitution of the Republic of Botswana came into effect in independence, and provided for
a republican form of government with three organs of state namely legislature, the executive and
the judiciary. Section 1 of the Constitution of Botswana states that Botswana is a sovereign
republic).
The constitution is the supreme law of the land in Botswana. The case of Attorney-General v
Dow illustrates the supremacy of the Constitution when the majority of the judges of the Court of
Appeal agreed that the provisions of sections 4 and 5 of the Citizenship Act Cap.01.1 were
discriminatory and repugnant to section 3 of the Constitution. A law which is contrary to the
constitution is invalid.
republican form of government is one in which the powers of state/sovereign are vested in the
people and are exercised by the people, either directly, or through representatives chosen by the
people, to whom those powers are specially delegated)
CUSTOMARY LAW
The definition of customary law is given under section 2 of the Customary Courts Act, 1969.
SECTION 2 of the Customary Act, 1969 defines customary law as ;
In relation to any particular tribe or tribal community, the customary law of that tribe or
community so far as it is not incompatible with the provisions of any written law or contrary to
morality, humanity or natural justice
COMMON LAW

Roman Dutch law is said to be the common law of Botswana which was inherited from the Cape
Colony. The Roman Dutch law origin is found in Roman law as influenced by Dutch customary
law.
It was introduced to the then-Cape Colony in 1652. Over the years it has been influenced by the
English Common law after British colonization of the Colony. The Criminal Law of Botswana is
originated from the English and evidence is based on South African Law. In Botswana, it has
been developed over years by statutes passed by the Parliament and Judicial decisions.

LEGISLATION

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Legislation refers to laws that emanate from passed parliament or bodies to which parliament has
delegated powers to legislate. Laws passed by parliament are called Acts/statute and orders,
proclamations, by-laws, regulations or rules refer to those laws passed by a
subordinate/subsidiary body/authority.
Therefore legislation comprises of statutes and subsidiary legislation. Botswanas statutes are
enacted by the National Assembly as given in terms section 86-89 of the Constitution.
Legislation validity depends on compliance with the Constitution. When a bill passes through the
National assembly and assented to by the State President, it becomes the Act of Parliament. It
comes into effect when published in the Government Gazette or at a later stage by a
notice/proclamation that it will come into effect at a particular date.

JUDICIAL PRECEDENT

The doctrine of judicial precedent is also referred to as stare decisis, which is a Latin phrase
which means let the decision stand.
In terms of this principle a lower court is bound by the decision of the higher court. The
precedents are those already decided and reported cases by the higher courts. The adherence to
the precedent helps achieve a regime of stable laws that brings about predictability and ensures
that law develops in accordance with community needs.

TREATIES
These are international instruments ratified and/or signed by Botswana and other international
countries.
Botswana is a dualism country, which basically means the treaties that Botswana is a signatory
to, have to be ratified and domesticated to be laws of Botswana. This is also noted in the case of
Good v The Attorney General, where the court held that;
International treaties to which Botswana was a signatory did not have the
force of law until incorporated in the domestic law. Section 24(1) of the
Interpretation Act (Cap 01:04) provided that such international conventions
and treaties as far as they had not been incorporated into domestic law may be
used as an aid to construction of the Constitution and of statutes.

THE CURRENT HIERARCHY OF BOTSWANA COURTS IS AS FOLLOWS:

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Court of Appeal

High Court

Magistrate Courts

Customary Court of Appeal

Customary Courts

CLASSIFICATION OF LAW

PUBLIC AND PRIVATE LAW

PUBLIC LAW
It governs the relationship between the state and its citizens. This comprises several specialist
areas such as:
Constitutional law: This is the fundamental and/or supreme law of the country. It also deals
with the distribution of the powers in the governments and the
fundamental rights of the citizens of the state.
Criminal law: Crime is an offense against the state committed or omitted in violation of
a public law. Criminal law involves crimes against the state. When a
state criminal law is violated, the government brings criminal charges
against the alleged offender.
State criminal laws prohibit such crimes as murder, arson, rape, and
burglary. A criminal act may be classified as a felony or misdemeanor. A
felony is a crime punishable by death or by imprisonment in a state
prison for more than one year. Some examples of a felony include abuse
(child, elder, or domestic violence), manslaughter, fraud, attempted
murder, and practicing medicine without a license.

PRIVATE LAW/CIVIL LAW

Private law is primarily concerned with the rights and duties of individuals towards each
other. The states involvement in this area of law is confined to providing a civilised method of
resolving the dispute that has arisen. Thus, the legal process is begun by the aggrieved citizen
and not by the state. Private law is also called civil law and is often contrasted with criminal law.
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CRIMINAL AND CIVIL LAW

Legal rules are generally divided into two categories: criminal and civil. It is important to
understand the nature of the division because there are fundamental differences in the purpose,
procedures and terminology of each branch of law.

THE DIFFERENCES BETWEEN CRIMINAL AND CIVIL LAW

CRIMINAL LAW

CIVIL LAW
Disputes

between

private

Concerns

Offences against the state

individuals

Purpose of the action

To preserve order in the To remedy the wrong which

community by punishing the has been suffered
offenders and deterring others

The parties to the action

A prosecutor prosecutes the The Plaintiff ( Claimant) Sues

ACCUSED.

the defendant. The case is

The prosecutions are brought brought in the names of the

in the names of the state.

one

who

e.g: State v Moretologa

against.

wrong

is

done

e.g Cecilia v Phokoje

Where the action is heard

All courts

All courts

Standard of proving a case

The Prosecutor must prove The Claimant must establish

his case beyond a reasonable his case on the balance of
doubt.

Decision

probabilities.

The accused is convicted if he The defendant may be found

is guilty and acquitted if he is liable to a claim or not liable
innocent.

Sanctions

Imprisonment, Fine, corporal Damages,

punishment

or

Capital (interdict),specific

Punishment (Death penalty)

injunction

performance etc.

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Murder, Theft, robbery, rape, Breach

EXAMPLES

of

contract,

tort

assault, nuisance driving with (malpractice), property law,

excess

alcohol,

practising sale law, banking etc.

medicine without a license.

CIVIL LAW.

Civil law involves wrongs against the person. Under civil law, a person can sue another person, a
business, or the government. Court judgments in civil cases often require the payment of a sum
of money to the injured party. Civil law includes a general category of law known as torts.

A TORT is broadly defined as a civil wrong committed against a person or property that
causes physical injury or damage to someones property or that deprives someone of his
or her personal liberty and freedom. Torts may be intentional (willful) or unintentional
(accidental).
o Intentional Torts. When one person intentionally harms another, the law allows
the injured party to seek a remedy in a civil suit. The injured party can be
financially compensated for any harm done by the person guilty of committing the
tort. If the conduct is judged to be malicious, punitive damages may also be
awarded. Examples of intentional torts include the following:

Assault: Assault is the open threat of bodily harm to another, or acting in

such as way as to put another in the reasonable apprehension of bodily
harm

Battery: Battery is an action that causes bodily harm to another. It is

broadly defined as any bodily contact made without permission, In healthcare delivery, battery may be charged for any unauthorized touching of a
patient, including such actions as suturing a wound, administering an
injection, or performing a physical examination.

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Defamation of character: Damaging a persons reputation by making

public statements that are both false and malicious is considered
defamation of character. Defamation of character can take the form of
slander and libel. Slander is speaking damaging words intended to
negatively influence others against an individual in a manner that
jeopardizes his or her reputation or means of livelihood.

Invasion of privacy: Invasion of privacy is the interference with a

persons right to be left alone. Entering an exam room without knocking
can be considered an invasion of privacy. The improper use of or a breach
of confidentiality of medical records may be seen as an invasion of
privacy.

CASE: In the case of, Estate of Berthiaume v.Pratt, an invasion of privacy case was
tried after a patient with cancer of the larynx died. The decease patient had
allowed his Physician to take several photographs that were to be used for the
medical record but not for publication. A few hours before he died, the
surgeon and a nurse attempted to take more photographs in spite the patients
indication that he did not want this done and his wifes protests. The wife sued
the surgeon for assault, since he had moved the patients head during the
photo taking, as well as invasion of privacy. An appeal court found in favor of
the plaintiff and stated that taking photographs in spite of the patients protest
was an invasion of his legal rights to privacy.

o Unintentional Torts. The most common torts within the health-care delivery
system are those committed unintentionally. Unintentional torts are acts that are
not intended to cause harm but are committed unreasonably or with a disregard
for the consequences.

In legal terms, such acts constitute negligence. Negligence is charged

when a healthcare practitioner fails to exercise ordinary care and the
patient is injured. The accused may have performed an act or failed to

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perform an act that a reasonable person would or would not have
performed.
CASE:

The case of Morrison v MacNamara Illustrates the standard of care issues. In

this case, MacNamara a technician took a urethral smear from the patient,
Morrison, while a patient was standing. Morrison fainted, hit his head, and
permanently lost his sense of smell and taste, an expert witness from Michigan
testified that the national standard of care for taking a urethral smear requires
the patient to sit or lie down. Thus the court found in favor of the plaintiff/
patient)

Under the principles of negligence, civil liability exists only in cases in

which the act is judicially determined to be wrongful. Health-care
practitioners, for example, are not necessarily liable for a poor quality
outcome in delivering health care. Practitioners become liable only when
their conduct is determined to be malpractice, the negligent delivery of
professional services.

END OF LECTURE-PLEASE READ MORE ON TORT CRIMINAL LAW &

CIVIL LAW ( Especially tort and contract law)

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