CODE OF CIVIL PROCEDURE IN BOTSWANA
This article will provide guidance on the Code of Civil Procedure in Botswana. Botswana used to be called the British Protectorate of Bechuanaland. In March 1885, it was made a British Protectorate. Union of 1908 said South Africa should include Bechuanaland, Basutoland, and Swaziland. Botswana is the name that was given to the country when it became independent on September 30, 1966. Sir Seretse Khama was the first President of Botswana. Bechuanaland was the name for the country of Bechuana, which is now called Batswana or Tswana (singular).
Bechuanaland was split into two parts: the south and the north. The southern part became British Bechuanaland, which was a colony.
Botswana's laws can be traced back to when Bechuanaland Protectorate was set up. But it was not until 1891 that an official government was set up. The Foreign Jurisdictions Act of 1890 gave the High Commissioner the power to make laws by proclamation on behalf of Her Majesty. So, on May 9, 1891, the Order-in-Council gave the High Commissioner the power to run the courts in the Protectorate.
The Roman-Dutch law was the common law in the Cape of Good Hope, now South Africa. This law came from Holland and was changed by the Colony's highest courts. So, in 1891, the law of the Cape Colony was put into effect in the Protectorate of Bechuanaland, but only for Europeans and British subjects. Botswana's common law is based on Roman-Dutch law which has been influenced by English law, or on Cape colony law which has been influenced by English law. As a source of law, this common law exists alongside legislation, judicial decisions, and customary law, which only applies to tribesmen.
WHERE DOES BOTSWANA LAW DERIVE POWER FROM
As part of the administration order, a Native Advisory Council and a European Advisory Council were set up in 1920. With the Native Administration, Proclamation 74 of 1934, and the Native Tribunals Proclamation 75 of 1934, tribal rule and power were made more official. The chiefs fought against this. So, in 1964, Britain gave the country its government. Second, a constitution was put in place in 1965. This led to the country's first general elections, the move of the capital to Gaborone, and the independence
The Constitution of the Republic of Botswana went into effect when the country gained its independence. It established a republican government with three parts: the legislature, the executive, and the judiciary. Botswana has no clear rule that says the constitution is the most important law.
Laws are always applied in a way that is consistent with the Constitution. The Constitution says that the courts must be independent.
Before the Bechuanaland Protectorate was set up, people in tribal areas had their legal systems. These are now called ‘customary law,’ and they were different from each other. Section 2 of the Customary Courts Act of 1969 and Section 4 of the Common Law and Customary Act define customary law (Cap. 16:01). In the 1891 proclamation, the High Commissioner was told to respect the laws of the country. So, these indigenous peoples' laws were recognized but not made part of the country's general law. The Botswana Constitution of 1966 did not change this, which is still true today.
Botswana's common law, which came from the Cape Colony, is based on Roman-Dutch law. Dutch customary law changed Roman law, which is where the Roman-Dutch law came from. It was brought to what was then called the Cape Colony in 1652. After the British took over the Colony and made it a colony, the English common law changed it over time. Botswana's criminal law comes from England, and how evidence is handled is based on South African law. In Botswana, it has grown over the years thanks to laws passed by the Parliament and decisions made by the courts. The Act of Parliament is passed by the National Assembly and approved by the State President. It goes into effect when it is printed in the Government Gazette or announced that it would go into effect on a certain date.
JUDICIARY IN BOTSWANA
Before Independence, the highest court of appeals was in London. It was called the Judicial Committee of the Privy Council. The three High Commission Territories didn't have a court of appeal until the Bechuanaland Protectorate, Basotoland, and Swaziland Proclamation 32 of 1955. The President of the Court of Appeal is in charge of the Court of Appeal, and the President also chooses the constituents. It is the court of last resort. All other courts have to follow the decisions it makes. It also has no authority from the start. On the advice of the Judicial Service Commission, the president also chooses judges and justices of appeal. This Commission comprises the Chief Justice, the head of the Public Service Commission, and the Chief Justice, and the Public Service Commission choose a third person.
Magistrates courts have the power to rule in their districts. They mostly use common law but may also hear cases about customary law.
The Court of Appeal is the highest in Botswana. After that comes the High Court, above the Magistrates' Court. The High Court is a court of first instance, but it also hears appeals from lower courts and tribunals, like the Magistrates' Court and the Land Tribunal, and reviews the decisions of those same courts and tribunals.
Special tribunals, like the Workman's Compensation Commissioner, the Income Tax Appeals Committee, and the Industrial Court, handle things that need specialized knowledge; Botswana has two kinds of law: [A.] a customary court system and a [B.] common law system. Customary Courts handle all tribal issues and have their hierarchy, but the Magistrates' Court, the High Court, and the Court of Appeal handle appeals.
HOW ARE CIVIL PROCEEDINGS CONDUCTED IN BOTSWANA
For a claim to be asserted, there are two types of civil proceedings: action proceedings and motion proceedings. The action starts with the service of a writ of summons. After that, documents are sent back and forth until the case goes to trial, where the court hears oral evidence. In a trial, the people involved are called the ‘plaintiff’ and the ‘defendant.’
The motion process starts when a notice of motion and an affidavit about the facts on which the person asking for relief is based are served. When a person files a motion, the case does not go to trial, and no oral evidence is heard. The main factor that decides whether to go forward with an action or a motion is whether any important factual disputes cannot be settled on paper without oral evidence.
Documents from court cases that have been settled are available to the public. But court documents about ongoing cases are only given to those with a personal stake. The registrar has full control over who gets to see what documents.
If an individual does not follow a court order, the deputy sheriff is usually responsible for ensuring it gets done. Contempt proceedings are also available to litigants when a stubborn party leaves the other side with no choice but to ask the High Court to step in. If a party is not happy with the final decision of a court of first instance, they can go to a higher court to try to change it. On the other hand, if a party is not happy with a decision, they can ask to have that decision looked at again in certain situations.
When there is no set price for a service, the High Court Rules (Rules) set a tariff for the time it takes. Rates may be different depending on what the client and lawyer agree on. It's important to remember that there is a difference between the costs that can be claimed on a party-by-party scale, as stated in the Rules, and that attorney and client fees are often much higher than the statutory rate.
Even though a third party could pay for a lawsuit, the Rules only consider the costs that the parties in court will have to pay. Because of this, third-party funding is a matter of the contract between the third party and the person who needs it. Also, it's important to know that Botswana lacks the right contingency fee laws.
CONDUCT OF FOREIGN PROCEEDINGS IN BOTSWANA
The Judgments (International Enforcement) Act says foreign court orders can be carried out in Botswana. When a party gets a final and binding judgment in their home country, that judgment is enforceable in Botswana, as long as the President of Botswana has recognized the country of origin in a published order as a country whose foreign judgments can be enforced by the courts once they are properly registered. To get the foreign judgment turned into an order of the court, an application must be made to the High Court.
Botswana has set up a Case Management System so the judge controls the case, not the people in court. The High Court Rules say that when a Summons is sent out, it comes with a very short Particulars of Claim. In the Summons and Particulars of Claim, the only things that are said are the names of the Plaintiff and the Defendant, the reason why the Court has jurisdiction, the reason why the Plaintiff claims locus standi (the legal right to sue), and a short statement of the Plaintiff's cause of action and the relief that is being asked for.
HOW ARE CIVIL PROCEEDINGS CONDUCTED IN BOTSWANA
If the defendant files an ‘Appearance to Defend’ after receiving the Summons, the grounds for the defense must be listed in the ‘Appearance to Defend. Then, Plaintiff must file Plaintiff's Declaration within fourteen court days of getting the ‘Appearance to Defend’ letter. The Plaintiff's Declaration is a full and detailed Statement of Claim that lists all of the facts and reasons why the Plaintiff deserves the relief they are asking for.
After the Plea is read, the parties and their lawyers must meet for an Initial Case Management Meeting immediately. At the Initial Case Management Meeting, the parties must talk about and agree on a number of things. These include, but are not limited to, the joining of parties, the changing of pleadings, the closing of pleadings, any additional details that may be needed, the splitting of trials, interlocutory motions and applications, admissions of fact, documents, and other evidence, and the scheduling of Discovery.
The most important reason for the Initial Case Management Meeting is for the parties to ask for, give, and receive admissions of facts, documents, and other evidence. The initial case management meeting aims to get as few disagreements about the facts as possible. At the end of the Initial Case Management Meeting, the parties write an Initial Case Management Report (a Minute of the Initial Case Management Meeting) filed with the Court. The parties' legal representatives then attend a Case Management Conference with the Judge, where the Case Management Report is reviewed and, if accepted by the Judge, becomes an Order of Court.
HOW IS PROCESS service is CONDUCTED IN BOTSWANA
Unless a specific time is given, any notice or document, other than a summons to an accused person, that needs to be given to an accused person must be given to the accused person at least ten days before the date listed in the document for his trial in the High Court, or at least two days before the date listed in the document for his trial in a magistrate's court, excluding Sundays and public holidays. The notice or document must be left there if the accused person can't be found.
The officer who serves a notice as described above must immediately deliver or send to the official from whom he received the notice or document for service a record of how the notice or document was served. This record is prima facie evidence that the notice or document was served in the form and manner described in the record. ) Members of the Botswana Police Force will be able to serve any notice or document under this Act as if they were Deputy-Sheriffs, Deputy-Messengers, or other similar court officers, as long as they follow the rules of the court.
Whenever it is necessary to prove service of a summons, subpoena, notice, or other processes, or the execution of a judgment or warrant, the service or execution can be proven by an affidavit made before a justice or commissioner of oaths with the power to take affidavits in the district where the affidavit is made, or in any other way that the service or execution could have been proven if it had happened in
Any summons, writ, warrant, rule, order, notice, or other processes, document, or communication, which by any law, rule of court, or agreement of parties is required or directed to be served or executed upon or left at the house or place of abode or business of any person, for that person to be affected by it, may be sent by telegraph. A telegraphic copy may be served, executed upon, or left at the house or place of abode or business.
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1. The most important part of this proclamation was section 19, which said that Cape Colony laws would apply in Botswana as far as the country's situation allowed. Section 2 of the General Law Proclamation 36 of 1909 said that both common law and statutory law in effect at the Cape of Good Hope on June 10, 1891, would apply to Bechuanaland. It also said that any Cape Colony statutes passed after June 10, 1891, would not apply to Bechuanaland unless the proclamation said so.
2. The Setswana phrase ‘ga re lebe motho, re leba molato,’ which means ‘the law is applied without regard to the status of the person being tried,’ is a good example of how the law should be applied.
3. The idea of judicial precedent, also called stare decisis, comes from the Latin phrase ‘let the decision stand.’ This principle says that a lower court must follow the decision of a higher court. This doctrine works best with a strict hierarchy of courts and a regular way of reporting the law. Sticking to the precedent helps create a set of stable laws that are easy to understand and ensure that the law changes to meet the community's needs.
4. The order of the courts in Botswana is as follows:
- The Supreme Court
- Magistrate Courts and the High Court
- Commissioner of the Court of Customs
- Customary Courts
- Customary Court of Appeals
5. Special tribunals, like the Workman's Compensation Commissioner, the Income Tax Appeals Committee, and the Industrial Court, handle things that need specialized knowledge.
6. Court proceedings are not secret because they are open to the public unless the judge has a good reason to hold them behind closed doors.
7. Except for privileged documents, a party has to give the other side full and quick access to all documents relevant to the case and in its possession or the possession of an agent.
Communications and papers that a lawyer and a client exchange are private. In a trial, evidence is shown through the testimony of witnesses unless a party has agreed to a summary of the evidence given in the pre-trial process. In motion proceedings, the affidavits that the parties file with the court show what proof they have.
8. This means that the amount that litigants can get back for their fees has to be between 50% and 60% of what they spent on taxation.
9. According to the Rules, the Plaintiff's Declaration must be accompanied by the following:
- An Affidavit of Facts is an affidavit signed by someone who knows about the case and can swear to the facts that led to the claim. The Affidavit of Facts needs to list all the important facts to the case and support the claim.
- Copies of any written documents and exhibits the plaintiff plans to use at the trial.
- Within 14 court days of receiving Plaintiff's Declaration, Defendant must file Defendant's Plea, a Request for Further Particulars, or another answer to Plaintiff's claim. If Defendant pleads to the merits of the claim, Defendant must file a Plea, which, according to the Rules, must be accompanied by an Affidavit of Facts and copies of all documents on which Defendant plans to base its defense of the claim.
10. If a company is charged with a crime under any law, the secretary and every director, manager, or chairman of the company in Botswana can be charged with the crime and punished for it, unless it can be shown that they didn't take part in the crime and couldn't have stopped it.