CHAPTER 04:04
MAGISTRATES' COURTS

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

 

 

PART I
Preliminary

 

   1.   Short title

 

   2.   Interpretation

 

 

 

PART II
Establishment and Nature of Courts

 

   3.   Establishment of courts

 

   4.   Nature of the courts and force and effect of process

 

   5.   Language to be employed in courts

 

   6.   Proceedings to be open to the public

 

   7.   Public access of records

 

 

 

PART III
Judicial Officers

 

   8.   Grades of magistrates and appointments thereto

 

   9.   Magisterial districts and regions

 

   10.   Assignment of magistrates to courts

 

   11.   Protection from actions

 

 

 

PART IV
Officers of the Court

 

   12.   Clerk of the court

 

   13.   Court bailiffs

 

   14.   Service of process by the police

 

   15.   Bailiff's return to be evidence

 

   16.   Suspension of bailiff for misconduct

 

 

 

PART V
Civil Matters

 

JURISDICTION

 

   17.   Jurisdiction in respect of causes of action

 

   18.   Arrest of absconding defendants and interdicts

 

   19.   Curator ad litem

 

   20.   ....

 

   21.   Transfer from one court to another

 

   22.   Rescission and correction of judgments and orders

 

   23.   Incidental jurisdiction

 

   24.   Abandonment of part of claim

 

   25.   Deduction of admitted debt

 

   26.   Splitting of claims disallowed

 

   27.   Jurisdiction cumulative

 

   28.   Set-off and counter-claims

 

   29.   Counter-claim exceeding jurisdiction

 

   30.   Magistrates not to have jurisdiction in certain matters

 

   31.   Judgment

 

   32.   Return of civil proceedings

 

 

 

WITNESSES AND EVIDENCE

 

   33.   Modes of procuring attendance of witnesses and penalty for non-attendance

 

 

 

EXECUTION

 

   34.   Jurisdiction to issue execution

 

   35.   Superannuation of judgments and revival thereof, and force of warrants of execution

 

   36.   Setting aside of warrant

 

   37.   Execution in case of judgment debt ceded

 

   38.   Manner of execution

 

   39.   Property exempt from execution

 

   40.   Property executable

 

   41.   Interpleader claims

 

   42.   Sale in execution gives good title

 

   43.   Surplus after execution

 

   44.   Debt, salary or wages may be attached

 

   45.   Future and accruing earnings, when attachable

 

   46.   Jurisdiction to decide disputes arising out of garnishee orders

 

   47.   Execution of payment is discharge pro tanto

 

   48.   Saving of existing law prohibiting attachment of certain property

 

   49.   Order for payments by instalments

 

   50.   Execution or suspension in case of appeal

 

   51.   Summons for civil imprisonment

 

   52.   Decree of civil imprisonment

 

   53.   Debtor may show that he has executable property

 

   54.   Period of imprisonment

 

   55.   Costs of civil imprisonment

 

   56.   Custody of gaoler

 

   57.   Discharge from imprisonment

 

   58.   Effect of discharge from imprisonment

 

   59.   Warrant of civil imprisonment may be suspended by court of area wherein it is executed

 

 

 

PART VI
Criminal Matters

 

JURISDICTION

 

   60.   Jurisdiction in respect of classes of offences

 

   61.   Jurisdiction in the matter of punishment

 

   62.   Return of criminal proceedings

 

   63.   Execution of sentence not to be suspended

 

 

 

PART VII
Offences

 

   64.   Offences relating to execution

 

 

 

PART VIII
General and Supplementary

 

   65.   Jurisdiction as to plea of ultra vires

 

   66.   Amendment of proceedings

 

   66A.   Assessors

 

   67.   Rules of court

 

 

Act 20, 1974,
Act 12, 1975,
Act 12, 1976,
S.I. 121, 1983,
Act 6, 1992,
Act 6, 1995,
Act 12, 1999,
S.I. 67, 2003,
Act 30, 2004,
S.I. 95, 2004,
S.I. 67, 2008,
Act 3, 2010.

An Act to make provision for magistrates' courts and for the jurisdiction of persons presiding over such courts and matters incidental thereto or connected therewith.

PART I
Preliminary
(ss 1-2)

 

1.   Short title

   This Act may be cited as the Magistrates' Courts Act.

 

2.   Interpretation

   In this Act, unless the context otherwise requires-

   "bailiff" means a court bailiff so appointed in accordance with section 13 or any person lawfully performing the functions of a bailiff in accordance with this Act;

   "clerk of the court" means any person so appointed in accordance with section 12;

   "court" means the court of a magistrate, of whatever grade, appointed under this Act;

   "High Court" includes a judge of that Court;

   "magistrate" includes a Regional Magistrate, a Chief Magistrate, a Principal Magistrate, a Senior Magistrate, a Magistrate Grade I, a Magistrate Grade II and a Magistrate Grade III, appointed in accordance with section 8;

   "Registrar" means the Registrar of the High Court.

PART II
Establishment and Nature of Courts
(ss 3-7)

 

3.   Establishment of courts

   There shall be courts subordinate to the High Court to be known as magistrates' courts presided over by magistrates appointed for the purposes of this Act.

 

4.   Nature of the courts and force and effect of process

   (1) Every court shall be a court of record.

   (2) Every summons, subpoena, writ, warrant or other process issued out of any court shall be of force throughout Botswana.

   (3) Any summons, subpoena, writ, warrant or other process issued out of any court may be served or executed through a bailiff:

   Provided that no costs shall be payable in excess of the costs of personal service in the cheapest and most effective manner suited to the circumstances.

 

5.   Language to be employed in courts

   (1) The language to be employed in a court shall be English and the evidence and all records of proceedings in the court shall be in that language.

   (2) If any of the parties or witnesses in a proceeding before a court does not understand the English language, then the proceedings shall be interpreted from English into the language understood by the parties or the witnesses concerned, as the case may be, and vice versa:

   Provided that in civil proceedings the parties may be called upon by the presiding magistrate to bear part or the whole of the cost of such interpretation where the language understood by the parties or witnesses is not one of the languages commonly spoken within the area of jurisdiction of the court.

 

6.   Proceedings to be open to the public

   (1) Except with the agreement of all parties thereto, all proceedings of a court, including the announcement of the decision of the court, shall be held in public.

   (2) Nothing in subsection (1) shall prevent the presiding magistrate from excluding from the proceedings persons other than the parties thereto and their legal representatives, to such extent as the magistrate may consider necessary or expedient-

 

   (a)   in circumstances where publicity would prejudice the interests of justice;

 

   (b)   in interlocutory proceedings; or

 

   (c)   in the interests of defence, public safety, public order, public morality, the welfare of persons under the age of 18, or the protection of the private lives of persons concerned in the proceedings.

   (3) If any person in or in the precincts of a court conducts himself in such a manner as is capable of disturbing the peace or order of the court, the presiding magistrate may order that such person be removed or detained in custody until the final rising of the court for the day, or, if in the opinion of the magistrate peace or order cannot otherwise be secured, may order that the public gallery be cleared and the doors thereof closed to the public.

 

7.   Public access of records

   The records and proceedings of every court shall in all cases be accessible to the public under the supervision of an officer of the court at convenient times and upon payment of such fees as may be prescribed by rules made under section 67 of this Act:

   Provided that after a period of 30 years has expired from the date of judgment in such proceedings, the President may order the removal of such records and proceedings to a central place of custody.

PART III
Judicial Officers
(ss 8-11)

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