Legal

While the courts are available to settle disputes, smaller disputes are better suited to be settled at the Kgotla (community level).  Examples of these types of disputes include destruction of crops by livestock and failure to pay back a debt. Another example is disputes where both parties do not wish to go to trial to reconcile and wish to maintain peace within the community.

The Small claims court operates in the Magistrate courts of Botswana and has limited powers as prescribed by the Act.

The proceedings of the court are open to the public but may be held in private (in camera) for reasons of confidentiality or other special circumstances.

This court is only open to natural persons (not available to corporations) except as defendants or counter-claimants.

The objective of the Small Claims Court is to provide simplified procedure and allow access to justice for those without the means to engage lawyers for claims which are within the powers of the court.

The Small Claims Courts' jurisdiction is limited to a maximum of BWP10, 000.00.

Key characteristics of the small claims court:

• The atmosphere in the court is relaxed and informal.
• The proceedings are conducted in any of the official languages of Botswana.
• Lawyers are not allowed to represent parties in that court.
• The court may allow or call additional witness(es) to give evidence.
• Interpreters are provided for those who do not understand any of the official languages used in court.
• If a plaintiff is unable to prepare their own documents, the clerk of court is available to assist.
• Strict rules of evidence do not apply in the court and cases before the court must be completed in one sitting.
• The order of the court is final and cannot be appealed against but can be reviewed on the grounds that the High Court did not have jurisdiction over the matter.

Decisions of the High Court and Court of Appeal are available in hard copy or electronic format by email to members of the public who subscribe to receive them quarterly throughout the year.

The Master is an officer appointed under Section 4 of the Administration of Estates Act, CAP 31:01 for specific purposes as outlined below under the purview of the relevant acts.

Administration of Estates Act, Section 4, CAP 31:01:

•  Administers estates of deceased persons – overseeing the administration by appointed executors and managing the property of the person who passed away.
• Administers the Guardian Fund - management of benefits of minor beneficiaries or persons whose whereabouts are unknown.
• Chairs next of kin meetings. These are meetings of close relatives (siblings, parents and children of the deceased) to nominate an executor to deal with the distribution of the estate of the person who passed away without a will.
• Approves liquidations and distribution accounts of the remaining properties of the estate.

Companies Act, CAP 42:01

• Supervises the winding up of companies placed under liquidation.
• Appoints liquidators.
• Appoints judicial managers.
• Presides over creditors’ meetings.
• Approves liquidation and distribution accounts.
• Insolvency act.
• Supervises sequestration of insolvent persons.
• Appoints trustees to corporate estates.

Insolvency Act, CAP 42:02

• Supervises the sequestration of insolvent persons and management of their estates.
• Appoints trustees to estates.

Marriage Act, CAP 29:01

• Issuance of certificates if protection of minors of former marriages where the person intending to remarry has a former spouse who is deceased. 

High Court Rules, CAP 04:02

• Provision of report to Judges and supervision of curators appointed by the Court together with overseeing the administration of estates of incapacitated persons. 

Liquidation

• ​​​The liquidation of a company is the process by which a company is brought to an end, and the assets and property of the company are redistributed.
• Liquidation is also sometimes referred to as winding-up or dissolution, however dissolution technically refers to the last stage of liquidation. 
• A liquidation generally occurs where the company is insolvent and the purpose of the liquidation is to collect its assets, determine the outstanding claims against the company, and satisfy those claims in the manner and order prescribed by law.
• Liquidation can either be voluntary or involuntary. 
• Generally, a voluntary liquidation, which can be either a members' voluntary liquidation or a creditors' voluntary liquidation, is brought about by resolution of the company and is conducted by a qualified practitioner.
•  An involuntary liquidation is brought about by an order of the court.

Judicial management 

• Judicial management generally refers to situations where a company is unable to pay its debts but the Court finds that the inability is due to mismanagement or an event that can be overcome. 
• Judicial management seeks to assist this type of company to overcome a temporary setback without going out of business. An order will be made by court placing the company under judicial management.
• A provisional judicial manager is appointed, to assume control until the final judicial manager can be appointed.
• Application for judicial management may be made by the company itself, a creditor or a member to the High Court. If the judicial manager cannot return the company to solvency, then he may recommend to the court that it is wound up.

Sequestrations 

• Sequestration generally refers to a situation where an individual's liabilities exceed their assets and they are unable to pay their debts and therefore an application is made to the High Court for the sequestration of that individual. 
• A provisional curator is then appointed to take over the individual's assets and salary if such individual is gainfully employed, until the appointment of a Curator.  The appointed Curator seeks to manage the insolvent's assets and pay creditors and get the insolvent back on his feet if possible. 
• The assets owned or funds generated by that company or individual are referred to as an estate. Liquidators, Judicial Managers and Curators are professionals who know the functions and procedures for administering these estates.  
• Following the insolvent estate being placed under liquidation, judicial management or sequestration, the Master must as soon as possible appoint a provisional liquidator, judicial manager or curator and summon a meeting of creditors.
• Such meetings are held in the Master's office or in the Magistrates Courts before a Magistrate. Two such meetings, described as first and second creditors meetings are held at different times.
• All claims that Creditors may have against the Company must be submitted to the appointed professional well ahead of the date of the meeting as the claims will be proved at these meetings. 

Any aggrieved party who feels there is a justifiable reason to issue restrain or block another party from being permitted to take a specific course of action may apply to the Magistrates Court for a restraining order.