GOV.BW

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.

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.