The revisionary jurisdiction of the higher courts of Botswana and England in the review of decisions of private bodies

Abstract

Botswana has a peculiar legal system. It is a former British protectorate, yet the British never introduced their own laws into the country. Instead Botswana was made to apply the law of the Colony of the Cape of Good Hope. Notwithstanding this development, that law indirectly incorporated English law, and this made the applicable law a hybrid of English law and Roman-Dutch law. This simultaneous application of two legal systems still causes a few problems of ascertainment of the law, especially in administrative law, and in particular in the process of judicial review. Judicial review is generally recognised as a remedy against wrongful decisions of authorities or bodies that exercise public powers or functions. These are bodies that were described compendiously as public bodies. This excluded private bodies from the ambit of judicial review as they were said not to exercise public powers. This resulted in injustice in many circumstances. The scope of judicial review had to expand. This thesis sets out to establish how this expansion occurred. It is a survey of the law governing the process of judicial review of acts and decisions of private bodies. It does so in a comparative manner, by focusing principally on two jurisdictions, Botswana and England. It looks at the manner in which this extension came about and the principles that underpinned the expansion of the scope for review. This reviewability of decisions of private bodies is central to this thesis. The thesis establishes that in both jurisdictions there has been some extension of the process of judicial review to decisions of private bodies. However, in both jurisdictions there is evidence of some resistance to the expansion of the scope of judicial review. The position in both jurisdictions remains in a state of flux, requiring settlement by the highest courts.