Legal

The following is an overview of the history, jurisdiction and characteristics of the levels of courts in Botswana:

The Court of Appeal

The Court of appeal is the highest court in the country and is the final arbiter of all legal matters. It is headed by the Judge President.

It currently has a total complement of nine Justices  of Appeal. The Judge President and five citizen justices with the remainder being visiting justices. Judges of the high court are ex officio members of the Court of Appeal.

The High Court

The High Court is a superior court of record with unlimited jurisdiction. The Chief justice is the most senior judge. The Chief Justice is both the administrative and judicial head of the judiciary. The High Court currently has a complement of twenty seven citizen judges.
There are currently four locations of the High Court: Lobatse, Francistown, Maun and the headquarters in Gaborone. The High Court presides over matters beyond jurisdiction of the lower courts, and appeals emanating from the lower courts.

Industrial Court

The Industrial Court is a Court of Law and Equity, created by section 14 of the Trade Disputes Act No.6 of 2016. the Court has exclusive judgments in all labour disputes and ranks equal to the High Court in its status and power. Its judgments are appealable to the court Appeal.

The Magistrate Court

The Magistrate court are created by statute with power defined by the Magistrates Courts Act. They are subordinate to the High Court. Unlike the High Court, Magistrates Courts are not created by the Constitution. They are therefore controlled and supervised by the High Court, through reviews and appeals.

The Botswana Magistracy performs a very pivotal role in the judiciary of the nation. The Magistrates try the bulk of the offences committed and they handle the bulk of common disputes between ordinary citizens of Botswana.

The following services are available at the Magistrate Courts:

• Family related cases such as paternity and alimony orders.
• Adoption of children.
• Restraining orders in domestic violence cases.
• Civil suits; here individuals sue others for non-payment of debts, breach of contracts, etc.
• Criminal trials- Magistrates Courts hear the bulk of criminal cases.

Magistrates Courts have gone through a complete transformation, from courts that were presided over by administration officers to courts wholly staffed by professional magistrates with legal qualifications. In 1966, there were only two magistrate courts in the country, one in Lobatse and the other in Francistown. But the growth and development of Magistrate Courts has been considerable. Today, the courts operate in 25 different centres around the country. These courts handle a large percentage of litigation in the country. Jurisdiction of the Magistrates court is BWP60,000.00.

The development of the Judiciary is intertwined with the political development of Botswana. The administrative changes that have taken place from the days of colonization to date have also affected the Judiciary and its nature. The functions of the Judiciary are primarily to promote the resolution of disputes in courts and to adjudicated cases  within its jurisdiction. By so doing, the judiciary is contributing to the maintenance of peace and tranquility.

The Judiciary is established by the constitution as one of the three arms of Government. Its pivotal role in the governance of the country is defined in the Constitution as the adjudication of both civil and criminal cases involving citizens and the state. It comprises of the Court of Appeal and the High Court and the Magistrates Courts.

Botswana has a dual legal system; that is the received law: Roman Dutch Law existing side by side with Customary Law. This is not dissimilar to other former colonies. During colonial times, Botswana had both foreign inhabitants living side by side with the indigenous people of the country. Each society was governed by legal regime it was familiar with. Foreign colonizers were governed by the received law while the indigenous (Batswana) were regulated under customary law.

The Judiciary is independent from the two other arms of government: the Executive and the Legislature. To further reinforce the independence of the Judiciary and to ensure that it is insulated from interference from the other arms, the constitution demands the existence of the Judicial Service Commission (JSC).

The JSC’s responsibility is the assessment and recommendation of officers to be appointed for Judicial posts and their discipline. Judicial appointments, although made by His Excellency the President, can only be made on the recommendations of an individual by the JSC, with the exception of the appointment of the Chief Justice and the President of the Court of Appeal. The powers and main functions of the Judiciary are defined under Part VI, Section 95 of the Constitution as to hear and determine any civil and criminal cases under any law.

The ultimate goal of an effective and efficient Judiciary is to stop people from taking the law into their own hands and promote an amicable resolution of their disputes. The citizens of Botswana have the right to demand and enjoy the existence of judicial independence.

This individuals and families interested in adopting children in Botswana. must submit a written application to the Civil Registry at the Magistrate's court.

The Court of Appeal's Jurisdiction is general and territorially defined. It also enjoys all power and authority vested in the High Court by the Constitution and any other law.

The Court of Appeal is a Supreme Court of record, with plenary review, appellate and, where appropriate first instance jurisdiction. It hears all appeals from the High Court and Industrial Court.  

Involves the orderly dissolution and distribution of an estate. 

Estates fall into two categories:

• Those of deceased persons who did not have a will (intestate).
• Those of deceased persons who had a will (testate).

The Master of the High Court has the power to administer estates reported to the office.  

The executor's duties include:

• Controlling and safeguarding the deceased's assets.
• Preparation and filing of a complete listing of the property of the deceased.
• Advertise the debtors and creditors notices in the government gazette and any local newspaper circulating in the area where the deceased used to reside. The adverts must specify a 30 day time frame from the date of publication in order to allow those with claims against the estate to lodge claims with the executor who will then assess the claims.
• Identify the heirs of the estate.
• Prepare a listing of approved debtors and creditors and develop a plan for the payment of those debts from the assets of the estate.
• Prepare the Liquidation and Distribution Plan (LDP) of how the deceased's assets will be distributed in accordance with the instructions of the will or intestate succession dividing the property amongst the intestate heirs of the deceased which will then be examined by the Master. 
• Advertise a notice that the LDP has been filed and is available in the Master's Office for inspection.  Objections to the plan submitted within 21 days of the advertisement publication must be addressed.
  1. Responses by the Executor to objections to the plan must be filed within 14 days of receipt of the copy of the objection from the Master. 
  2. Where there are no objections, the executor must seek written approval from the Master to allocate property and pay debts according to the account.
• File receipts, certificates, motor vehicle registration books, title deeds, affidavits and other documents confirming distribution of the assets to the lawful heirs and creditors and request permission to be released as executor by the Master.

Members of the public who are dissatisfied with the administrative action or decision taken against them by officers at government ministries, and agencies are encouraged to let their voices be heard. This is done by lodging formal written complaint with the Office of the Ombudsman. 

Please note that, the Ombudsman may decline addressing a complaint if (s)he finds the complaint is without reasonable cause or has been delayed for more than 12 months.