Civil law in Botswana

Civil law in Botswana covers the legal capacity and capacity to act of individuals, contracts, land and other assets, marriage and family matters, estates, damages and the enforcement of civil claims. The age of majority begins at 18. The national identity document (Omang) often serves as proof of identity; non-citizens may need a passport or the consent of the responsible minister, depending on the procedure. If a person lacks legal capacity, the High Court may conduct a curator proceeding. Botswana combines Roman-Dutch Law with customary law. Customary Courts and Kgotla proceedings address certain disputes according to local practices and may also support the amicable resolution of smaller debt or community disputes. An agreement reached there is binding as an agreed settlement, but does not automatically replace a judgment of the High Court. Traditional leadership (Bogosi) and Kgotla may also play a role in matters concerning land, customary status and inheritances. Contractual claims mainly concern debts, breaches of contract and damages. Written contracts, receipts and other evidence make enforcement easier. Magistrates' Courts generally handle civil matters up to a value in dispute of 60,000 BWP, while the High Court has unlimited civil jurisdiction. Natural persons in Gaborone and Francistown can also use a Small Claims Court within the Magistrates' Courts. Lawyers are not permitted there, the hearing is informal, the claim limit is 10,000 BWP, and a 14-day demand letter normally has to be sent before filing the claim. Land is divided into three categories: tribal land, state land and freehold land. Tribal land is administered through Land Boards and is open to Batswana subject to the applicable requirements; non-citizens need the minister's consent for certain rights. Transfers may require, among other things, a certificate or lease, identity documents, evidence of matrimonial property status and, depending on the case, a final divorce order or a death certificate. According to the official estimate, registering land rights with the Registrar of Deeds or through the responsible Land Board structure takes about one month and costs approximately 100 BWP. Certain decisions of a Land Board or planning authority may be appealed to the Land Tribunal; an appeal to the High Court generally has to be filed there within eight weeks. Marriages are solemnized by the District Commissioner. The official service requires, among other things, a minimum age of 21, two witnesses and forms submitted 21 days before the ceremony. In a common-law marriage, property separation generally applies unless an agreement creating community of property is concluded and witnessed before the marriage and registered in the Deeds Register within 90 days. Divorce, judicial separation and annulment are decided exclusively by the High Court. A divorce generally requires the irretrievable breakdown of the marriage; the marriage must normally have lasted at least two years. The decree absolute follows the decree nisi no earlier than six weeks later. Matters concerning custody, maintenance and matrimonial property may be dealt with as part of the same proceedings. The Master of the High Court administers reported estates. A death must be reported within 14 days; depending on the case, the documents include a death certificate, Death Notice, Provisional Inventory, will and a form concerning matrimonial property status. The Executor secures assets, identifies heirs and creditors, and publishes a notice to creditors with a 30-day deadline. Objections to the Liquidation and Distribution Plan may be filed within 21 days; the Executor responds within 14 days. The official service may take approximately six months. For inherited land, the Land Board, Chief and traditional leadership may participate in the review and transfer, depending on the land category. Civil liability may arise from a contract or tortious conduct. Damages and compensation generally require evidence of the cause and amount of the loss. Unquantified damages claims may be supported by evidence and an affidavit and assessed by the Registrar or Clerk; a reassessment must be requested within 14 days. State liability cases are handled through the Attorney General's Chambers. In traffic accidents, the police report serves as the central record; if a state vehicle is involved, the civil claim is forwarded through that office. Depending on the case, formal civil proceedings begin with a writ of summons, petition or notice of motion. The claim is filed in the original and with copies, dated and stamped, and served on the defendant. After service, the defendant usually has 14 court days to enter an appearance, while the state has 21 days. According to the official guideline, proceedings before the High Court may take about 24 months, and a civil case before the Magistrates' Court about 14 months. A person who cannot afford a lawyer may file a written statement and sworn financial information with the Registrar or Magistrate as a poor litigant; exemption from court fees may be possible. After a judgment, the Deputy Sheriff, Court Bailiff or Messenger of Court may initiate enforcement. The usual steps are a demand for payment, seizure and then a public auction of movable or immovable property. Beds, food, clothing and certain work equipment remain protected. Notice of a sale is normally given within 14 days. If payment is not made and there are no attachable assets, the court may, subject to the statutory requirements, also order civil imprisonment. Current laws and subordinate legislation are freely accessible through Botswana e-Laws; Kgotla proceedings generally require no evidence, although their procedure depends on the local forum.