CUSTOMARY COURTS: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Customary Court of Appeal Rules

Customary Courts (Corporal Punishment) Rules

Customary Courts (Enforcement of Specified Laws) Order

Customary Courts (Procedure) Rules

Establishment and Jurisdiction of Customary Courts Order

Customary Courts (Powers to Prosecute) (Authorisation) Order

CUSTOMARY COURTS (PROCEDURE) RULES

 

(under section 49)

 

(25th June, 1971)

 

ARRANGEMENT OF RULES

 

   RULE

 

 

 

   1.   Citation

 

   2.   Interpretation

 

   3.   Registers

 

   4.   Identification number of cases

 

   5.   Entry of criminal case in Register

 

   6.   Entry of civil case in Register

 

   7.   Refusal to enter case

 

   8.   Date of hearing

 

   9.   Particulars to be entered

 

   10.   Summons to witness and notice of hearing

 

   11.   Witnesses' fee

 

   12.   Contents and service of summons

 

   13.   Failure to obey summons

 

   14.   Power of Court to order prisoner to be brought to give evidence

 

   15.   Recording of evidence

 

   16.   Adjournment

 

   17.   Cases to be called on date of hearing

 

   18.   Rights of defendant

 

   19.   Hearing of criminal cases

 

   20.   Procedure at trial

 

   21.   Recording and delivery of judgment

 

   22.   Passing of sentence

 

   23.   Right of appeal to be explained

 

   24.   Warrant for sentence of imprisonment

 

   25.   Procedure on hearing-civil cases

 

   26.   Right of appeal

 

   27.   Fees

 

   28.   Payment of fines

 

   29.   Payment of compensation

 

   30.   Failure to pay fines or compensation

 

   31.   Attachment and sale of property

 

   32.   Power of Court to enforce judgment of other Courts

 

 

 

      Schedule - Forms

 

 

S.I. 74, 1971,
S.I. 55, 1975,
S.I. 117, 1976,
S.I. 78, 1991,
S.I. 124, 2014,
S.I. 107, 2016.

 

1.   Citation

   These Rules may be cited as the Customary Courts (Procedure) Rules.

 

2.   Interpretation

   In these Rules unless the context otherwise requires-

   "civil case" means a case in which the complainant seeks to recover from another person-

 

   (a)   any money owing to the complainant;

 

   (b)   the value of any goods sold;

 

   (c)   any property belonging to the complainant;

 

   (d)   compensation for damage done to the complainant's person, property or reputation;

 

   and includes a case where the complainant seeks to enforce a legally binding agreement or where the complainant seeks some remedy available under the customary law applicable to the parties;

   "clerk" means a clerk of a Customary Court appointed by the Minister;

   "compensation" means recompense in money or livestock paid to an aggrieved or injured party;

   "complainant" for the purposes of rules 20 and 22 includes a prosecutor;

   "Court" means a Customary Court established under the Act;

   "criminal case" means a case in which the complainant alleges facts which, if proved, would show that some person had committed an offence and in which the punishment of the offender is sought;

   "fine" means a sum of money fixed as a penalty for an offence;

   "Presiding Officer" means a person who being a member of a Court presides over that Court;

   "Register" means a case Register kept in accordance with the provisions of rule 3;

   "revenue collector" means an officer appointed by the Minister for the collection of revenue.

 

3.   Registers

   The clerk of every Court shall keep a case Register in respect of all criminal and civil cases in such Court.

 

4.   Identification number of cases

   (1) A serial number shall be given to every case depending on the year in which the case started and the number of such case in such year.

   (2) All documents in a case shall bear the serial number of that case, which shall be written at the top of the first page.

   (3) In every case there shall be recorded in writing and attached to the record of the case the names of the members of the Court trying such case.

 

5.   Entry of criminal case in Register

   If a complainant wishes to start a criminal case the clerk, if he is satisfied that the complaint is made in good faith and that the facts complained of constitute an offence within the jurisdiction of the Court, shall enter the case in the Register and shall give it a serial number and, unless the defendant is in custody, shall prepare a summons in Form 1 in the Schedule.

 

6.   Entry of civil case in Register

   If the complainant wishes to start a civil case the clerk shall enter the case in the Register and shall give it a serial number and shall prepare a summons in Form 2 in the Schedule.

 

7.   Refusal to enter case

   A complainant who is aggrieved by the refusal of a clerk to enter a case in the Register may appeal to the Presiding Officer.

 

8.   Date of hearing

   (1) As soon as possible after a case has been entered in the Register, the clerk shall apply to the Presiding Officer to fix the date of hearing.

   (2) In fixing the dates for hearing the Presiding Officer shall take account of the necessity for service of the summons to be effected on the defendant not less than seven clear days before the date of hearing, and of the places of residence of any witnesses of whom the Court is informed:

   Provided that, if the defendant is present before the Court and consents, the trial may proceed forthwith, or on any convenient date.

 

9.   Particulars to be entered

   (1) Every summons, whether in a criminal case or a civil case, shall be prepared in duplicate and shall be signed by the clerk and, if a summons to a defendant, shall be served on the defendant not less than seven clear days before the date of hearing.

   (2) Every summons to a defendant in a criminal case shall state briefly the offence with which the defendant is charged.

   (3) Every summons to a defendant in a civil case shall state briefly the substance of the claim and the matter in dispute.

   (4) Nothing in this section shall be deemed to affect the power of a Court to warn persons to attend Court.

 

10.   Summons to witness and notice of hearing

   (1) If any of the parties wishes to compel the attendance of any witness to give evidence at the trial he shall in sufficient time for service to be effected apply for a summons to be served on the witness. A summons to a witness shall be in Form 3 in the Schedule.

   (2) Every summons to be served on a witness who resides within the area of jurisdiction of the Court which issues the summons shall be served not less than three clear days before the date of hearing.

   (3) Every summons to be served on a witness who resides outside the area of jurisdiction of the Court shall be delivered to the clerk of the Court in whose jurisdiction the witness resides not less than 10 clear days before the date of hearing.

 

11.   Witnesses' fee

   (1) A witness who attends before the Court under rule 10 shall be paid such tariff of allowances on the same scales as are payable to a witness appearing in a magistrate's court.

   (2) In criminal cases, the revenue collector shall pay the allowance due to a witness from public funds and in civil cases the allowance shall be made by the party in whose favour the witness is to testify.

 

12.   Contents and service of summons

   (1) Every summons shall require the person named in it to appear before the Court on the date of hearing and shall if reasonably practicable be served personally on him by a bailiff delivering one copy to him.

   (2) If the person named in the summons cannot be found after a careful search the summons may be served by delivering one copy to the husband, wife or guardian of the person named in the summons.

 

13.   Failure to obey summons

   Where the defendant in a criminal or civil case or any witness in a criminal or civil case has been summoned or warned to attend before the Court and who, without lawful excuse, fails to attend as required by the summons, or who having attended, goes away without first being given the permission of the Court, or who fails to attend after an adjournment of the Court after being told by the Court to attend, the Court may issue a warrant for his arrest in Form 4 (Warrant for arrest of Defendant) or Form 5 (Warrant for arrest of Witness) in the Schedule.

 

14.   Power of Court to order prisoner to be brought to give evidence

   (1) Where any Court, either on the application of any party to a case pending before it or on its own motion, desires that any person confined in any prison should be examined as a witness in the hearing of such case, such Court may issue an order in Form 6 in the Schedule to the officer-in-charge of such prison requiring him to bring such prisoner in proper custody, at a time to be named in the order, before the Court for examination.

   (2) The officer so in charge, on receipt of such order, shall act in accordance therewith and shall provide for the safe custody of the prisoner during his absence from the prison for the purpose aforesaid.

 

15.   Recording of evidence

   (1) In every trial the evidence shall be recorded in writing in the language of the Court by the clerk under the directions of the Presiding Officer.

   (2) At the close of each case and of each day's hearing the Presiding Officer and the clerk shall sign their names and the date at the last line of the record.

 

16.   Adjournment

   (1) The Court may from time to time adjourn the hearing of any case for a suitable period-

 

   (a)   if the complainant, the defendant or an essential witness is absent, or is otherwise unable or unfit to take part in the proceedings;

 

   (b)   if the hearing continues for more than one day;

 

   (c)   if the decision cannot be reached due to lack of time;

 

   (d)   if the Court is not satisfied that it has jurisdiction to try the case; or

 

   (e)   for any other sufficient reason to be recorded on the record of the case.

   (2) In a criminal case, if the defendant is being held in custody the period of an adjournment shall not exceed seven days, and the Court shall issue a remand warrant in accordance with Form 7 in the Schedule, and where the defendant is to be removed from custody, the court shall issue a removal warrant in accordance with Form 8 in the Schedule.

   (3) Before adjourning a case the Court shall inform any of the parties and any witnesses who are present of the date to which the case is to be adjourned.

 

17.   Cases to be called on date of hearing

   (1) Every case shall be called for mention or hearing on the date fixed for the hearing and shall either be disposed of or adjourned.

   (2) If the complainant in a criminal case does not appear when the case is called for hearing, the Court shall appoint a later date. If then the complainant shall again fail to appear, the Court may discharge the defendant.

   (3) If the complainant in a civil case does not appear, whether after an adjournment or not, when the case is called for hearing the Court may dismiss the case.

 

18.   Rights of defendant

   Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.

 

19.   Hearing of criminal cases

   The hearing of a criminal case shall commence in the following manner-

 

   (a)   the Presiding Officer shall explain to the defendant the charge against him;

 

   (b)   the Presiding Officer shall ask the defendant whether there is anything to stop the case from proceeding;

 

   (c)   the Presiding Officer shall ask the defendant whether he admits committing the acts complained of and that he has contravened the law concerned; and

 

   (d)   if the defendant admits unequivocally that he has committed the acts complained of and that he has contravened the law concerned, the Presiding Officer shall record a plea of guilty, and in all other cases the Presiding Officer shall record a plea of not guilty.

 

20.   Procedure at trial

   The procedure on the trial of any criminal case shall be as follows-

 

   (a)   the prosecutor or, if there is no prosecutor the complainant, shall inform the Court briefly of the facts of the case;

 

   (b)   the complainant shall call witnesses in turn to prove his case;

 

   (c)   if the complainant wishes to give evidence himself he shall do so before he calls any other witnesses;

 

   (d)   each witness shall give his name, address, national identity number, telephone or cellular phone number, next of kin and occupation and shall state what he knows about the case and shall answer any relevant questions put to him by the complainant;

 

   (e)   after the witness has stated what he knows about the case, the Presiding Officer shall inform the defendant that he is entitled to ask the witness any questions relevant to the facts of the case and the defendant may then ask such questions;

 

   (f)   after the defendant has finished asking any relevant questions under paragraph (e) the Presiding Officer and any member in turn may then ask relevant questions of the witness;

 

   (g)   after the complainant has called all his witnesses he shall close his case and the Court shall consider whether the evidence that has been given is sufficient to require an answer from the defendant;

 

   (h)   the Court shall not require an answer from the defendant unless it is satisfied that the charge has been substantiated by credible evidence and that in the absence of explanation or evidence by the defendant, the Court would have the duty to convict him of the offence charged: unless the Court is so satisfied it shall acquit the defendant;

 

   (i)   where the Court considers the evidence sufficient to require an answer from the defendant, the Presiding Officer shall inform the defendant that he may say anything he wishes in his defence or that he may remain silent;

 

   (j)   the Presiding Officer shall inform the defendant that he may call witnesses if he wishes;

 

   (k)   where the defendant gives evidence or says anything in his defence he may be asked questions by the complainant and by the Presiding Officer and members;

 

   (l)   where the defendant wishes to give evidence or to say anything in his defence, as the case may be, under paragraph (i), he shall do so before he calls any witnesses;

 

   (m)   the defendant may ask questions of the witnesses whom he calls, and they may be asked relevant questions by the complainant and by the Presiding Officer and members;

 

   (n)   after the defendant has called witnesses he wishes to call, if any, and they have been questioned, the Court shall give the complainant and the defendant an opportunity to sum up their evidence and make any other relevant submissions which they may wish to make, and the Court shall consider all the evidence and pronounce judgment; and

 

   (o)   where the Court-

 

      (i)   after considering all the evidence and other matters properly before it in the case, feels any real doubt regarding the guilt or innocence of the defendant, the Court shall acquit the defendant of the offence charged,

 

      (ii)   has no doubt referred to under subparagraph (i) and is satisfied on the evidence before it that the guilt of the defendant has been proven, the Court shall convict the accused of the offence charged, or

 

      (iii)   is constituted of more than one member, and the members cannot agree to the guilt or innocence of the defendant, the view of the majority of the members shall be the verdict of the Court, and if the views of the members are equally divided the defendant shall be acquitted.

 

21.   Recording and delivery of judgment

   When the Court has determined whether the defendant shall be convicted or acquitted of the offence with which he is charged, it shall record in writing the judgment, including the reasons for it. Such judgment shall be signed by the Presiding Officer of the Court, who shall deliver it in open Court in the presence of the defendant.

 

22.   Passing of sentence

   (1) When a defendant is convicted the complainant may inform the Court of any other offences of which the defendant has been convicted previously, and the Presiding Officer shall ask the defendant whether he agrees that he has been convicted of those offences. If the defendant does not agree that he has been convicted of the offences concerned, the Court may hear evidence from the complainant and the defendant concerning the commission of the offences concerned, and, after making such further enquiries as it shall think fit, the Court, if it is satisfied that the defendant was convicted of the alleged offences, shall take such offences as are similar in nature to the offence of which the defendant stands convicted into consideration in determining the sentence to be passed.

   (2) Before passing sentence the Presiding Officer shall ask the defendant whether he wishes to say anything about the sentence which should be passed on him.

   (3) After the defendant has said anything he wishes under subrule (2) the Court shall consider and determine the sentence to be imposed.

   (4) The sentence of the Court shall be recorded in writing and signed by the Presiding Officer together with the reasons for it, and such sentence and reasons shall be delivered in open Court in the presence of the defendant.

 

23.   Right of appeal to be explained

   Immediately after passing sentence on the defendant the Presiding Officer shall inform him of his right of appeal as laid down in the Act.

 

24.   Warrant for sentence of imprisonment

   (1) A clerk of the sentencing Court shall issue a warrant in Form 9 in the Schedule signed by the Presiding Officer of the Court by which any person has been sentenced to imprisonment, ordering that the sentence shall be carried out in a specified prison within Botswana.

   (2) Subject to the provisions of section 23 of the Act, a warrant issued in accordance with subrule (1) shall be full authority to the officer-in-charge of the prison to which a person is committed in terms of subrule (1), for the carrying into effect of the sentence described in such warrant.

 

25.   Procedure on hearing-civil cases

   The hearing of every civil case shall be conducted in accordance with the procedure authorized by the customary law prevailing in the area of jurisdiction of the Court, subject to the following provisions-

 

   (a)   the complainant shall outline the nature of his claim and may call such witnesses as he may wish to support his case;

 

   (b)   the defendant shall thereupon make an answer to the complainant's claim;

 

   (c)   every witness shall give evidence and may be questioned in the same manner as is laid down in rule 20;

 

   (d)   after the defendant has called all his witnesses, the Court shall give the complainant and the defendant an opportunity to sum up their evidence and make any other relevant submissions which they may wish;

 

   (e)   after considering all the evidence and any submission made by the complainant and the defendant, the Court shall decide whether and to what extent the complainant's claim has been made out and shall give judgment accordingly;

 

   (f)   the Presiding Officer having heard the views of other members present shall proceed to judgment: the view of the majority of the members shall be the judgment of the Court: if the views of the members are equally divided judgment shall be for the defendant;

 

   (g)   every judgment or order shall be recorded in writing and shall contain the reasons for the decisions, and shall be signed by the Presiding Officer who shall deliver it in open Court.

 

26.   Right of appeal

   After the judgment or order has been delivered the Presiding Officer shall inform the party against whom the judgment has been given, if he is present, of his right to appeal as laid down in section 42 of the Act.

 

27.   Fees

   On every civil appeal from judgment of a Court to a higher customary court or Customary Court of Appeal, a fee of P50.00 shall be payable to the Court from whose decision the appeal is made, and no fee shall be payable in a criminal trial.

 

28.   Payment of fines

   All fines imposed by and all fees payable to a Court shall be paid to the revenue collector who shall issue a receipt and shall dispose of the same as from time to time directed by the Accountant-General.

 

29.   Payment of compensation

   All compensation whether in moneys or livestock as ordered by the Court shall be paid to the revenue collector.

 

30.   Failure to pay fines or compensation

   (1) Where a Court makes an order for the payment of a fine or compensation, or both, it shall direct by its sentence that in default of the payment of the fine or both or compensation the offender shall suffer such period of imprisonment as will satisfy the justice of the case:

   Provided that in no case shall such imprisonment exceed the maximum period fixed as follows-

 

Amount 

Maximum PeriodNot exceeding P5014 daysNot exceeding P1001 monthNot exceeding P1503 monthsNot exceeding P2004 monthsExceeding P2006 months

   (2) The imprisonment which is imposed in default of payment of a fine or compensation, or both shall terminate whenever the fine is either paid or levied by process of law.

   (3) Where a term of imprisonment is imposed by a Court in default of the payment of a fine or of compensation that term shall, on the payment or levy of a part of such sum, be proportionately reduced.

   (4) For the purposes of this rule in calculating the maximum period of imprisonment for non-payment of compensation one head of cattle shall be worth P1 000, and eight head of small stock shall be the equivalent of one head of cattle.

 

31.   Attachment and sale of property

   (1) Where a Court believes that a person on whom a fine or order of compensation, or both has been imposed by that Court has property liable to seizure it may without application in default of such payment make a sale order for the levy of such fine or compensation, or both.

   (2) A sale order issued under paragraph (1) shall be in Form 10 in the Schedule.

   (2A) Where the defendant in a civil case obstructs a bailiff or assistant bailiff from enforcing a sale order, the defendant shall be in contempt of court and shall be liable to the penalties provided under section 28 of the Act.

 

32.   Power of Court of enforce judgment of other Courts

   Upon receipt of any decree, order, warrant or process directed to a Court, the Court concerned shall enter such decree, order, warrant or process in its own records and enforce, execute or serve them as though they were issued originally by the Court concerned.

SCHEDULE
FORMS

Form 1
CRIMINAL SUMMONS

 

(Rule 5 of the Customary Courts (Procedure) Rules)

 

In the ....................................................................................................... Customary Court 

Case No........................of 20 ......... 

      (1) ........................................................................................................................... 

versus 

      (2) ...........................................................................................................................

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