Administration of Justice

• They must submit a letter/application, in writing, to the Registrar/ Magistrate of the court outlining that: they are requesting permission to sue or defend as an individual of limited financial means. Also explaining that they lack the financial means to afford their own legal assistance.
• The Registrar/Magistrate, on receipt of the letter/application, will make inquiries as to the means of the applicant in order to assess the legitimacy of the claim. The Registrar/ Magistrate may require the applicant to provide a verbal oath or a written affidavit for the lack of financial ability.
• Once the Registrar/ Magistrate approves the written application, the case is referred to a legal practitioner who makes the assessment of whether the applicant has a reasonable chance of success in their case before deciding whether take the case. The applicant will be informed through written correspondence of the outcome of his or her application.
• The Registrar/ Magistrate will grant the applicant leave to sue or defend without payment of court fees. The applicant will be given a document signed by the Registrar/Magistrate stating that he is given leave to sue or defend without payment of court fees. The applicant will then attach a copy of the said document whenever filling documents at the Registry.

Anyone interested in accessing this service must follow the steps outlined below:

• Take the complaint or court order, where applicable, to the clerk of appointed customary court with the supporting documents. 
• In the absence of a court order, the complaint must be as specific as possible, orally done, giving full details of the defendants including names, addresses, and phone numbers.
• Clerk sets date and issues summons for appearance by all parties. Appearance could be at the court or other appointed venue.
• At the appointed date and time, the property would be divided and a ruling would be handed down. The Service Document would be returned to the higher court (High Court or Customary Court of Appeal).

• Once the defendant has failed to appear at the set court date or enter a defence within the allotted time, an applicant can request a default judgement by filing one of the application for judgment in default most relevant to the situation involved (as outlined below). 
• The application form is to be submitted to the Registrar of the High Court/ Magistrate

In order to institute divorce proceedings  an applicant should file writ of summons, in Summons-Form 2 in the first schedule with such variations as circumstances require – (High Court Rules).

• The Plaintiff, or the Plaintiff's attorney or agent shall bring the original originating process documents and four copies to the Civil Registry in Gaborone, Francistown or Lobatse for date stamp, signing and filing.
• The Civil Registry will register the summons and retain two copies. 
• One copy is to be served to the respondent. 
• One copy is retained by the applicant.
• It is the responsibility of the filing party (applicant) to furnish the respondent with the originating process.
• Service upon a person of a  summons, may be made by any adult person who has no interest in the cause and is able to explain its nature and contents
• Except in the case of arrest; writs of summons, shall not be served on a Sunday or between 1900 hrs and 0700 hrs of any other day, and no such service shall be valid if made.
• The registered case is then assigned to a judge who will preside over it until completion.
• Following due process as instructed by the judge, a decree -nisi (tentative order granting divorce)  is granted. An applicant/respondent can then apply for a decree absolute (final divorce order) six (6) weeks following the order.
• A rule nisi is a court order that does not have any force until such time that a particular condition is met, in the case of divorce it is six (6) weeks. Once the condition is met, the ruling becomes decree absolute and is binding.
• Once the rule nisi is granted, the litigants have to wait six (6) before applying for the decree absolute
• The application for decree absolute can be made in the form of a letter addressed to the Registrar stating the case particulars and when the rule nisi was granted and whether six (6) weeks has passed since the order was granted

• Commenced by a writ of summons, petition or notice of motion (collectively referred to as "originating process") signed by the Registrar / Clerk of court and date-stamped with the stamp of the Court.
  1. A writ of Summons shall be in Writ of Summons (Form 2 for High Court or Form 7 for Magistrate) in the first schedule with such variations as circumstances require High Court rules/ Magistrate Court Act.
  2. The Notice of Motion shall be in Notice of Motion (Form 4 for High Court or Form 3 for Magistrate) in the first schedule with such variations as circumstances require, and shall state the rule under which the application is brought.
• The Plaintiff, or the Plaintiff's attorney or agent shall bring the original, originating process documents and three(3) copies (or if there is more than one defendant, an extra copy for each additional defendant) to the Civil Registry at the High Court/ Magistrate court for date stamp, signing and filing.
• Serve the defendant(s) with copies of the originating process documents that have been signed and date stamped by the Registrar/ Clerk of Court and file proof of service at the Civil Registry.
• Service upon a person of a petition, notice, summons, order, pleading or other document of which service is required, may be made by any adult person who has no interest in the cause and is able to explain its nature and contents.
• Except in the case of arrest; writs of summons, petitions, notices, summonses, orders, pleadings and other documents shall not be served on a Sunday or between 19:00. and 07:00 of any other day, and no such service shall be valid if made.

The steps involved in this process are as follows:

•  ​​Civil matters must be reported to the Kgotla directly.  
• The complaints will be registered and a date will be set for the hearing of their cases where both the plaintiff and the defendant should be present before the Kgosi for the matter to be solved. 
• Criminal matters must be reported directly to the Botswana Police. Where they would then determine whether the case should be tried at the customary court or magistrate court and advised accordingly.