HIGH COURT: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Rules of the High Court

RULES OF THE HIGH COURT

 

(section 28)

 

(12th January, 2011)

 

ARRANGEMENT OF ORDER OF RULES

 

   ORDER

 

 

 

   1.   Application and interpretation

 

   2.   General forms of process, fees, etc.

 

   3.   Duties of Registrar

 

   4.   Advocates and Attorneys: warrants to sue and defend

 

   5.   Effect of non-compliance

 

   6.   Writ of summons

 

   7.   Disability

 

   8.   Service of summons, writs, notices and other documents

 

   9.   Entry of appearance to summons

 

   10.   Edictal citation

 

   11.   Renewal of writ

 

   12.   Petitions and applications

 

   13.   Affidavits and depositions

 

   14.   Provisional sentence

 

   15.   Arrest of defendant

 

   16.   Joinder of parties and consolidation of actions

 

   17.   Third party procedure

 

   18.   Proceedings by or against partnerships and associations

 

   19.   Change of parties

 

   20.   Pleading generally

 

   21.   Close of pleadings

 

   22.   (Deleted)

 

   23.   Dismissal for want of prosecution

 

   24.   Declaration

 

   25.   Plea and claim in reconvention

 

   26.   Replication

 

   27.   (Deleted)

 

   28.   Application for directions

 

   29.   Judgment by consent

 

   30.   Judgment in default of appearance

 

   31.   (Deleted)

 

   32.   Amendment of pleadings

 

   33.   Irregular proceedings

 

   34.   Summary judgment

 

   35.   Special cases and adjudication on point of law

 

   36.   Assessment of damages

 

   37.   Inquiries and accounts

 

   38.   Payment into court

 

   39.   Discovery, inspection and production of documents

 

   40.   Admissions

 

   41.   Inspection, examinations and expert testimony

 

   42.   Case management: allocation of cases and case management conferences

 

   43.   Set down of defended actions, motions and petitions

 

   44.   Procuring evidence for trial

 

   45.   Civil trials

 

   46.   Poor litigants

 

   47.   Withdrawal, settlement, postponement and abandonment

 

   48.   Variation and rescission of orders

 

   49.   Matrimonial causes

 

   50.   Entering judgment in default

 

   51.   Drawing up ofjudgments and orders

 

   52.   Execution

 

   53.   Imprisonment for debt

 

   54.   Discovery in aid of execution

 

   55.   Garnishee proceedings

 

   56.   Contempt of court

 

   57.   Security for costs

 

   58.   Review of taxation

 

   59.   Civil appeals from magistrate, judges and other bodies or persons

 

   60.   Appeals in Criminal cases from subordinate courts to the High Court

 

   61.   Reviews

 

   62.   Criminal proceedings: circuit court

 

   63.   De Lunatico Inquirendo, appointment of curators in respect of persons under disability and release from curatorship

 

   64.   Interpleader

 

   65.   Sworn translators

 

   66.   Interpretation of evidence

 

   67.   Inspection of records

 

   68.   Criminal trials

 

   69.   Superannuation

 

   70.   Enforcement of protective provisions under section 18 of the Constitution

 

   71.   Computation of time

 

   72.   Tariff of Deputy-Sheriff fees

 

   73.   Advocates' fees in civil matters

 

   74.   Taxation and tariff of fees of attorneys

 

   75.   Allowances payable to assessors

 

   76.   Tariff of allowances payable to witnesses in civil proceedings in the High Court

 

   77.   Law terms and vacations

 

   78.   Trade Unions and Employers' Organizations Rules

 

   79.   Paper and printing

 

 

 

      Schedule 1

 

      Schedule 2

 

      Schedule 3

 

      Schedule 4

 

S.I. 115, 1969,
S.I. 117, 1969,
S.I. 98, 1970,
S.I. 65, 1971,
S.I. 80, 1971,
S.I. 123, 1971,
S.I. 82, 1972,
S.I. 79, 1975,
S.I. 21, 1982,
S.I. 66, 1982,
S.I. 121, 1982,
S.I. 61, 1985,
S.I. 16, 1986,
S.I. 89, 1986,
S.I. 58, 1989,
S.I. 65, 1989,
S.I. 7, 1991,
S.I. 116, 2004,
S.I. 41, 2005,
S.I. 73, 2006,
S.I. 40, 2008,
S.I. 24, 2009,
S.I. 1, 2011,
S.I. 22, 2014,
S.I. 79, 2015.

ORDER 1
APPLICATION AND INTERPRETATION

   1. These Orders and Rules may be cited as the Rules of the High Court.

   2. Application of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.

   3. In these Rules, unless the context leads to a repugnant result-

   "action" means a civil proceeding commenced in such manner as may be prescribed, but does not include a criminal proceeding by the State;

   "advocate" means an advocate duly admitted and still enrolled on the Roll of Legal Practitioners under section 13 of the Legal Practitioners Act and a foreign advocate admitted to practice under section 7 of the Legal Practitioners Act;

   "attorney" means an attorney duly admitted and still enrolled on the Roll of Legal Practitioners under section 13 of the Legal Practitioners Act;

   "cause" includes any action, suit or other original proceeding and any criminal proceeding;

   "counsel" means an advocate or an attorney;

   "court" means a judge sitting in open court;

   "court day" means any day other than a Saturday, Sunday or any day which is a public holiday under the Public Holidays Act;

   "defendant" includes a defendant to a counter-claim;

   "deliver" means file the original with the Registrar and serve copies bearing the Registrar's date stamp on all parties;

   "Director of Public Prosecutions" includes any counsel delegated to handle a criminal case on behalf of the Director of Public Prosecutions;

   "Form" means a form set out in Schedule 1 to these Rules;

   "judge" means the judge to whom a cause has been allocated under Order 42, sitting in open court or in chambers;

   "judgment" includes a decree;

   "judicial division" means a division of the High Court of Botswana as may be prescribed as such from time to time;

   "magistrate" means a person appointed as such under section 104 of the Constitution;

   "Master" means the Master of the High Court appointed under section 4 of the Administration of Estates Act;

   "matrimonial cause" means any action for divorce, nullity of marriage or judicial separation;

   "motion day" means at least one day in every week, other than during vacation, on which a judge shall sit to hear and consider any matter required under these Rules to be heard on a motion day or any other matter directed by the judge to be so heard. The Registrar shall publish the dates of each judge's motion days at least three weeks in advance of the earliest such date.

   "parastatal" means a corporate body of whatever form in which a majority interest is held directly or indirectly by the Government;

   "party" or any reference to a plaintiff, defendant or other litigant includes his counsel;

   "plaintiff" includes a plaintiff in a counter-claim;

   "Principal Registry" means the Office of the Registrar at the seat of the judicial division in which a cause was first registered;

   "Registrar" means the Registrar of the High Court and includes a Deputy Registrar, an Assistant Registrar and any person performing the duties of a Registrar under the authority of section 17 of the High Court Act;

   "Registry" includes the Registry at the High Court at Lobatse and Francistown and at any seat of the High Court that may be gazetted as such;

   "Sheriff" includes a Deputy-Sheriff and any person acting under the general or special directions of the Sheriff;

   "trial" includes the substantive hearing of application or petition proceedings, where applicable.

ORDER 2
GENERAL FORMS OF PROCESS, FEES, ETC.

   1. The Registrar or other officer empowered to do so shall sign and date- stamp every writ or other process.

   2. The forms in Schedule 1, or forms as near as shall be, may be used in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.

   3. In proceedings for which forms are not provided in Schedule 1 or prescribed by any enactment, the Registrar may, subject to the approval of the Chief Justice, from time to time, frame such forms as may be appropriate in the circumstances.

   4. (1) The fees specified in Schedule 2 shall be paid by the party at whose instance they are incurred, and may afterwards be recovered as costs of cause, unless a judge so orders.

   (2) A judge may, on account of the poverty of any party, although such party may not have been formally admitted to sue or defend as a pauper, or for other sufficient reasons, dispense, if he sees fit, with the payment of any fees.

   (3) An application under subrule (2) shall be made informally to the Registrar by a party at any time before or after the commencement of the proceedings stating the grounds on which he claims the payment of fees should be dispensed with.

   (4) The Registrar shall put the application before a judge as soon as possible, who, after considering the application and hearing the applicant (if he considers that necessary), shall make an order allowing or refusing the application.

   (5) Before making an order under subrule (4), the judge may direct the Registrar or the District Officer of the place where the applicant resides to make any enquiries or investigations regarding the circumstances of the party and the grounds stated in the application.

   (6) The judge may order that the dispensation shall extend to the whole or any part of the fees payable in the action.

   5. Unless otherwise expressly provided therein, the fees specified in the second column of Schedule 2 shall be paid in respect of the items set out in the first column thereof by means of, either:

 

   (a)   postage stamps issued by the Government or with the authority of the Government; or

 

   (b)   in cash paid to the proper officer of the court, who shall forthwith issue an official receipt for the cash.

   6. No document in respect of which a fee is payable shall be accepted, unless payment has been made under rule 5.

   7. Upon receipt of any such document, the proper officer of the Registry shall forthwith cancel such stamps by means of impressing with indelible ink partly upon each and every such stamp and partly upon the document to which they are affixed, the stamp of the Registry or district registry concerned with the true date of such impression in such a manner that the stamps are clearly defaced.

   8. No receipt shall be issued by the court or any officer thereof in respect of stamps required to be affixed hereunder.

   9. The proper officer of the court whose duty it is to receive any document required to be stamped hereunder shall ensure that each and every such document is sufficiently and properly stamped before accepting the same.

   10. (1) The officer receiving any writ, document or other process for filing shall forthwith impress on the document the date stamp provided for that purpose indicating the date and time of receipt and shall then append his signature below the date and time.

   (2) The officer shall then, if satisfied that the prescribed fees have been paid, file the same in the case file, and an entry of the filing thereof and the date of the filing shall be made in the Civil Record Book forthwith.

   (3) No writ of summons, document or other process which is required to be filed shall be filed unless the prescribed fees (if any) have been paid and the document duly date-stamped as provided in this rule and any other rule.

   11. All writs, documents or other process or document prepared by an attorney shall be backed with the name and place of business of the attorney stating the capacity in which he acts.

ORDER 3
DUTIES OF REGISTRAR

   1. In addition to the duties referred to in any other Order or enactment, the Registrar shall carry out the duties specified in this Order.

   2. The Registrar at each Registry shall keep a register to be called the Civil Record Book in which the following particulars shall be recorded-

 

   (a)   the serial number of the cause;

 

   (b)   the names of the parties and their attorneys (if any);

 

   (c)   the plaint or cause of action;

 

   (d)   the date each document was filed and the party filing it;

 

   (e)   the date and place of hearing the cause;

 

   (f)   the names of counsel (if any);

 

   (g)   the name of the judge and any other judge hearing any aspect of the cause;

 

   (h)   the judge's reference;

   (i)   the judgment;

 

   (j)   the date the judgment was delivered; and

 

   (k)   any subsequent proceedings and remarks.

   3. (1) As soon as a writ of summons is issued, the Registrar shall prepare a cover endorsed with the reference of the judge in which all pleadings, applications, affidavits and other processes or proceedings relevant to the case shall be filed.

   (2) Separate covers shall similarly be kept and endorsed for all petitions, originating motions or other originating matters to be presented to court.

   (3) The writ of summons and all other documents in any cause shall be numbered by the Registrar before issue with a consecutive number for the year and the cause shall, at the time of issue, be entered by him in the Civil Record Book under that number.

   (4) Every document afterwards served, delivered or filed in such cause shall be marked with such number, and the judge's reference by the party delivering it and shall not be received by the Registrar until so marked.

   4. The Registrar shall not accept and file any document or issue any writ of summons, subpoena or other process or order of court unless the prescribed fee has been paid, except where the party has been granted leave to proceed under Order 46 or an order dispensing with the payment of fees has been made under Order 2.

   5. The Registrar shall have the authority to limit the hours during which process may be filed, provided that in doing so, he shall ensure that process may be filed for at least five hours on any court day.

ORDER 4
ADVOCATES AND ATTORNEYS: WARRANTS TO SUE AND DEFEND

   1. Except as is hereinafter provided, no writ of summons, petition, motion or other originating document in a cause and no order of arrest under Order 15 shall be issued by the Registrar at the instance of an attorney on behalf of a plaintiff, petitioner or applicant, nor shall the Registrar cause appearance to be entered at the instance of an attorney on behalf of a defendant or respondent unless there has been filed with him a power of attorney to sue or defend, as the case may be:

   Provided that no power of attorney need be filed by the Attorney-General, Director of Public Prosecutions or any counsel to the Attorney-General or Director of Public Prosecutions in any matter in which the Attorney-General or Director of Public Prosecutions is acting in his capacity as such for or on behalf of the Government of Botswana or for a Government Department.

   2. On good cause shown to the Registrar, an attorney may, without filing a power of attorney, enter appearance on behalf of a client to defend proceedings, on the condition that the power of attorney is filed as soon as possible and in any event before any further step is taken by such attorney.

   3. On good cause shown to the Registrar, an attorney may, without filing a power of attorney, institute proceedings of an urgent nature, on the condition that the power of attorney is filed as soon as possible and in any event before the proceedings are heard unless the judge excuses such filing for proper reason.

   4. (1) No public company or parastatal may institute, defend or oppose any cause or appear before the court otherwise than by counsel.

   (2) A natural person may appear to prosecute or defend a cause in person, while a private company, partnership or association may appear by a director, partner, or other officer being duly authorized by resolution and power of attorney to do so.

   5. If any action taken under rules 2 and 3 is repudiated by the alleged principal and is found by the judge to have been unjustified, the judge may order the attorney personally to pay the costs thereby occasioned.

   6. The Registrar shall not set down any civil appeal at the instance of an attorney on behalf of an appellant unless-

 

   (a)   such attorney files with the Registrar a power of attorney authorizing him to prosecute the appeal; or,

 

   (b)   it is shown to the Registrar that the power of attorney filed in the proceedings in the court a quo confers such authority.

   7. Every attorney appearing or instructing an advocate to appear on behalf of the respondent at the hearing of a civil appeal shall before the hearing thereof file with the Registrar a power of attorney authorizing him to act for the respondent, unless it is shown to the Registrar that the power of attorney filed in the proceedings in the court a quo confers such authority.

   8. Powers of attorney shall be duly signed by the client and dated and shall be in Form 1 in Schedule 1 with such variations as circumstances may require.

   9. A party suing or defending by an attorney shall be at liberty to change his attorney in any cause upon not less than five court days' written notice of such change being filed with the Registrar and served on all other parties, together with a power of attorney and notice of substitution from his new counsel, or a notice that he will thenceforth represent himself, in which case he shall notify a physical and postal address for service within the jurisdiction.

   10. An attorney may at any time renounce his agency by giving not less than five court days' written notice to his client, any other parties and to the Registrar, but until the client furnishes the Registrar with, and notifies the opposite party of, a new address for service, any process served on the retiring attorney at the address for service shall be considered good service and the retiring attorney shall notify his former client of the service of any such process by letter addressed to the client's last known address.

   11. Notwithstanding rule 9, once a cause is set down for hearing, no attorney shall be permitted to renounce his agency during the 10 court days immediately preceding the trial date except with the leave of the judge upon good cause shown, which shall not include only the failure of a client to pay fees.

ORDER 5
EFFECT OF NON-COMPLIANCE

   1. Subject to rule 2, non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the judge so directs, but the proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with, in such manner and on such terms as the judge may think fit.

   2. (1) No proceedings shall be void or be rendered void or wholly set aside under rule 1, or otherwise by reason only of the fact that the proceedings were begun by means other than those required in the case of the proceedings in question by any provision of these Rules.

   (2) Where proceedings are begun as mentioned in subrule (1) then, subject to the provisions of that subrule, the judge may make any order which he has power to make under rule 1, and subrule (1) shall not be taken as prejudicing the power of the judge to make any order he may think fit with respect to the costs of these proceedings.

   3. (1) An application to set aside any proceedings for irregularity shall be brought under the provisions of rule 1 of Order 33.

   (2) An application under this rule may be made on motion and the grounds of objection must be stated in the notice of motion.

   (3) No such application shall be brought unless 10 court days notice has been given to the offending party to remove the cause of complaint and he has failed to do so.

ORDER 6
WRIT OF SUMMONS

   1. (1) Every action, other than process for the arrest of the defendant, shall, where service is to be effected within the jurisdiction, be commenced by a writ of summons, petition or notice of motion (in this rule collectively referred to as "originating process") signed by the Registrar and date-stamped with the stamp of the court.

   (2) An originating process shall be issued by the Registrar or other officer of the court empowered to issue an originating process.

   2. An originating process shall be issued out of the Registry for the division of the court in which the cause is to be heard.

   3. (1) The originating process shall, where service is to be effected within the jurisdiction, command the defendant that he cause an appearance to be entered within the period prescribed in the writ to answer the plaintiff's claim.

   (2) The originating process shall require the person serving it to serve on the defendant at the same time a copy of the process and immediately thereafter to return to the High Court the original process duly endorsed with what he has done concerning it.

   4. Before issue, every originating process shall contain the following particulars-

 

   (a)   the full name of the defendant and

 

      (i)   where the defendant is an individual,

 

         (aa)   his residence or place of business, and, where known, his occupation, and, if he is sued in a representative capacity, the capacity in which he is so sued,

 

         (bb)   the defendant's gender and marital status and whether a married defendant is married in or out of community of property,

 

      (ii)   where the defendant is an incorporated or unincorporated entity, the name of the defendant, whether or not the defendant is incorporated and, if so under what law and the defendant's registered office or principal place of business.

 

   (b)   where the defendant's full name is unknown to the plaintiff and cannot be ascertained, that fact should be stated and such particulars as can be ascertained, including the defendant's name and where possible such initials as are known, should be given;

 

   (c)   the full name, occupation and residence or place of business of the plaintiff, and if he is suing in a representative capacity, the capacity in which he sues;

 

   (d)   where the plaintiff is an individual, the plaintiff's gender, marital status and whether a married plaintiff is married in or out of community of property;

 

   (e)   where the plaintiff is an incorporated or unincorporated entity, the name of the plaintiff, whether or not the plaintiff is incorporated and, if so under what law and the plaintiff's registered office or principal place of business.

 

   (f)   a statement of the nature of the claim made and of the relief or remedy sought in the action; and

 

   (g)   the date of issue of the writ.

   5. A writ of summons shall be in Form 2 in Schedule 1 with such variation as circumstances require.

   6. (1) The plaintiff or his attorney or agent shall present at the Registry the original originating process, and three copies thereof, or if there is more than one defendant, one extra copy for each additional defendant.

   (2) Upon payment of the prescribed fee the Registrar shall sign and date- stamp the original and all the copies.

   (3) The plaintiff or his attorney or agent shall then file the originating process at the Registry.

   (4) The officer in the Registry to whom an originating process or other process is presented for filing shall impress the date stamp provided for that purpose on the original originating process and every copy presented and shall also append his signature below the date and time impressed by the date stamp.

   (5) The officer shall then retain the original and a copy and return the other copies duly impressed with the date stamp and signed to the person presenting the same.

   (6) The officer in the Registry to whom pleadings, petitions, applications, affidavits and all other process, proceedings or other document relevant to the case are presented for filing shall impress the date stamp provided for that purpose on each original document and every copy presented, and shall also append his signature below the date and time impressed by the date stamp.

   (7) The officer shall then retain the original and one copy and return the other copies duly impressed with the date stamp and signed as aforesaid to the person presenting the same.

   (8) For the purposes of compliance with subrules (6) and (7) the party or his attorney shall present to the officer in the Registry the original and one copy of the document for retention by the officer, and one copy for the party or his attorney, and as many other copies as are required for service.

   7. In every action the writ shall be endorsed with the particulars of the claim, signed by the plaintiff or his attorney which particulars shall state truly and concisely the nature, and the grounds of the cause of action and the relief sought.

   8. (1) Subject to the provisions of this Order, an originating process may, before service, be amended by the plaintiff as he thinks fit.

   (2) Any alteration or amendment of an originating process, whether before or after issue, shall, before service thereof, be initialed by the Registrar, and until so initialed such alterations and amendments shall have no effect.

   9. (1) Before an originating process is issued it must be endorsed-

 

   (a)   where the plaintiff sues by an attorney, with the plaintiff's address and the attorney's name or firm and a business address of his within the jurisdiction, and also (if the attorney is the agent of another) the name or firm and business address of his principal;

 

   (b)   where the plaintiff sues in person, with-

 

      (i)   the address of his place of residence and, if his place of residence is not within the jurisdiction, or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent, and

 

      (ii)   his occupation;

 

   (c)   where the plaintiff is a private company, partnership or association and sues by its officer, with-

 

      (i)   the capacity of such officer,

 

      (ii)   the nature of its business and the address of its principal place of business, and

 

      (iii)   the address of its registered office, if any.

   (2) The address for service of a plaintiff shall be-

 

   (a)   where he sues by an attorney, the business address of the attorney endorsed on the summons or, where there are two such addresses so endorsed, the business address of the attorney who is acting as agent for the other;

 

   (b)   where he sues in person, the address within the jurisdiction endorsed on the writ.

   10. In all cases where proceedings are commenced other than by writ of summons, rule 12 shall apply to the documents by which such proceedings are originated as if they were a writ of summons.

   11. A writ of summons shall be prepared by the plaintiff or an attorney and shall be written or printed or partly written or partly printed on A4 paper of good quality.

   12. The time within which a defendant shall be required to enter appearance to defend shall be reckoned as follows-

 

   (a)   where the defendant's address for service is within a radius of 100 kilometres from the High Court Registry issuing the writ of summons, the time limited for entering appearance shall be 14 court days after the service of the writ of summons (including the day of the service);

 

   (b)   where the defendant's address for service is outside the radius of 100 kilometres from the High Court Registry issuing the writ of summons, the time limited for entering appearance shall be 21 court days after the service of the writ of summons (including the day of the service).

   13. The appropriate office for entering an appearance shall, in all cases, be the High Court Registry issuing the writ of summons.

   14. (1) Every writ of summons shall be made returnable to the High Court at the place at which appearance is required to be entered and the writ shall be endorsed and returned thereto by the person who served the writ after service thereof has been effected.

   (2) The endorsement of service shall be made on the writ within three court days of the service thereof and the writ so endorsed returned to the High Court as soon as possible thereafter.

   15. (1) A cause, once registered, may not be withdrawn without leave of the judge to whom it has been allocated.

   (2) An application for such leave shall be made ex parte and may, in the discretion of the judge, be heard in his chambers.

   (3) Such leave shall only be given on good and sufficient cause and upon such terms as the judge deems just.

   16. The same cause shall not be registered at more than one Registry.

ORDER 7
DISABILITY

   1. In this Order-

   "patient" means a person who, by reason of age, infirmity, disability or mental disorder, is incapable of managing and administering his property and affairs;

   "person under disability" means a person who is under the age of 21 years or a patient

   "guardian" shall include guardian ad litem, curator and tutor, as the context requires.

   2. (1) A person under disability may not bring, or make a claim in, any proceedings except by his guardian, and may not defend, make a counter-claim or intervene in any proceedings, or appear in any proceedings under a judgment or order, notice of which has been served on him except by his guardian ad litem.

   (2) Subject to the provisions of these Rules, anything which in the ordinary conduct of any proceedings is required or authorized by a provision of these Rules to be done by a party to the proceedings shall or may, as the case may be, if the party is a person under disability, be done by his guardian or guardian ad litem.

   (3) A guardian or guardian ad litem of a person under disability must act by an attorney.

   3. (1) Except as otherwise provided in any written law, a guardian ad litem must be appointed by the judge.

   (2) Except where the guardian or guardian ad litem, as the case may be, of a person under disability has been appointed by the judge-

 

   (a)   the name of any person shall not be used in a cause as guardian of a person under disability;

 

   (b)   an appearance shall not be entered in a cause for a person under disability; and

 

   (c)   a person under disability shall not be entitled to appear by his guardian ad litem on the hearing of a petition, action, summons or motion which, or notice of which, has been served on him,

unless the documents listed in rule 4 have been filed.

   4. The documents referred to in rule 3 (2) are the following-

 

   (a)   a written consent to be guardian or guardian ad litem, as the case may be, of the person under disability in the cause in question given by the person proposing to be such guardian or guardian ad litem;

 

   (b)   except where the person proposing to be such guardian or guardian ad litem of the person under disability, being a patient, is authorized under any written law relating to mental health to conduct the proceedings in the cause in the name of the patient or on his behalf, a certificate made by the attorney for the person under disability certifying-

 

      (i)   that he knows or believes, as the case may be, that the person to whom the certificate relates is a person under disability giving (in the case of a patient) the grounds of his knowledge or belief,

 

      (ii)   where the person under disability is a patient, that there is no person authorized as aforesaid, and

 

         (iii)   that the person so named has no interest in the cause in question adverse to that of the person under disability.

   5. (1) Where-

 

   (a)   in an action against a person under disability begun by writ of summons to which an appearance is required to be entered, no appearance is entered in the action for that person; or

 

   (b)   the defendant to an action serves a plea and counter-claim on a person under disability who is not already a party to the action, and no appearance is entered for that person, an application for the appointment by the judge of a guardian ad litem of that person must be made by the plaintiff or defendant, as the case may be, after the time limited (as respects that person) for appearing and before proceeding further with the action or counter-claim.

   (2) Where a party to an action has served on a person under disability who is not already a party to the action, a third party notice, and no appearance is entered for that person to the notice, an application for the appointment by the judge of a guardian ad litem of that person must be made by that party after the time limited (as respects that person) for appearing and before proceeding further with the third party proceedings.

   (3) Where in any proceedings against a person under disability begun by petition or motion, or by writ of summons, to which no appearance has been entered, that person does not appear by a guardian ad litem at the hearing of the petition, motion, action or summons, as the case may be, the judge hearing it may appoint a guardian ad litem of that person in the proceedings, or direct that an application be made by the petitioner or applicant, as the case may be, for the appointment of such a guardian.

   (4) An application under subrule (1) or (2) must be supported by evidence proving-

 

   (a)   that the person to whom the application relates is a person under disability;

 

   (b)   that the person proposed as guardian ad litem is willing and a proper person to act as such and has no interest in the proceedings adverse to that of the person under disability;

 

   (c)   that the writ of summons, plea and counter-claim or third party notice, as the case may be, was duly served on the person under disability; and

 

   (d)   subject to subrule (5), that notice of the application was, after the expiration of the time limited for appearing, and at least seven court days before the day named in the notice for hearing of the application, so served on him.

   (5) If the judge so directs, notice of an application under subrule (1) or (2) need not be served on a person under disability.

   6. Notwithstanding anything to the contrary contained in any rule, a person under disability shall not be taken to admit the truth of any allegation of fact made in the pleading of the opposite party by reason only that he has not traversed it in pleadings.

   7. Orders 28 and 39 shall apply to a person under disability and to his guardian or guardian ad litem.

   8. (1) A special case stated in a cause to which a person under disability is a party shall not be entered for argument without the leave of the judge.

   (2) An application for an order under this rule must be supported by sufficient evidence that the statements of fact made in the special case, so far as they affect the interest of the person under disability, are true.

   (3) A special case to which this rule applies shall not be entered for argument by the Registrar unless, at the time when the application is delivered to him, there is produced to him a copy of the order required under this rule.

   9. Where in any proceedings (other than a matrimonial cause) money is claimed by or on behalf of a person under disability, no statement, compromise or payment, and no acceptance of money paid into court, whenever entered into or made, shall, so far as it relates to that person's claim, be valid without the approval of the judge.

   10. (1) Where before proceedings in which a claim for money is made by or on behalf of a person under disability (whether alone or in conjunction with any other person) are begun, an agreement is reached for the settlement of the claim, and it is desired to obtain the judge's approval to the settlement, an application to the judge may be made for-

 

   (a)   the approval of the judge to the settlement and such orders or directions as may be necessary to give effect to it; or

 

   (b)   alternatively, directions as to the further prosecution of the claim.

   (2) Subject to any special provisions in these Rules, the documents must be served-

 

   (a)   in the case of a minor who is not a patient, on his guardian, or, if he has no guardian, on the person with whom he resides or in whose care he is; or

 

   (b)   in the case of a patient, on the person (if any) who is authorized under any written law to conduct in the name of the patient or on his behalf the proceedings in connection with which the document is to be served, or, if there is no person so authorized, on the person with whom he resides or in whose care he is, and

 

   (c)   in the manner required by these Rules with respect to the document in question.

   (3) Notwithstanding anything in subrule (2), the judge may order that a document which has been, or is to be, served on the person under disability, or on a person other than a person mentioned in that subrule, shall be deemed to be duly served on the person under disability.

   (4) A judgment or order requiring a person to do, or refrain from doing, any act, or a notice of motion or writ of summons for the attachment or committal of any person must, if that person is a person under disability, be served personally on him unless the judge otherwise orders.

   (5) Subrule (4) shall not apply to an order for interrogatories or for discovery or inspection of documents.

ORDER 8
SERVICE OF SUMMONS, WRITS, NOTICES AND OTHER DOCUMENTS

   1. (1) 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.

   (2) 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 7 p.m. and 7 a.m. of any other day, and no such service shall be valid if made.

   2. (1) Where the application to the judge is for an order affecting the liberty or status of the respondent, the application, petition, summons or writ shall be served by delivery of a copy thereof to the respondent personally, unless the judge for good cause shown gives leave for such application, petition, summons or writ to be served in some other specified manner.

   (2) Service of any process on the person to be served, shall be effected in one or other of the following manner-

 

   (a)   by delivering a copy thereof to the said person personally:

 

         Provided that:

 

      (i)   where such person is a minor or a person under legal disability service shall be effected upon the guardian, tutor, curator, or the like of such minor or person under disability; and

 

      (ii)   where such person refuses to accept delivery, service shall be effected by leaving the copy in full view of such person.

 

   (b)   by leaving a copy thereof at the place of residence or business of the said person, guardian, tutor, curator or the like with the person apparently in charge of the premises at the time of delivery, being a person apparently not less than 16 years of age;

 

   (c)   for the purposes of paragraph (b), when a building other than an hotel, boarding house, hostel or similar residential building is occupied by more than one person or family,"residence"or "place of business" means that portion of the building occupied by the person upon whom service is to be effected;

 

   (d)   by delivering a copy thereof at the place of employment of the said person, guardian, tutor, curator or the like to some person apparently not less than 16 years of age and apparently in authority over him;

 

   (e)   if the persons so to be served have chosen a domicilium citandi, by delivering a copy thereof at the domicilium so chosen by either handing to the defendant personally or to any responsible person apparently not less than 16 years old found thereat and only if there is no one to accept service then by affixing a copy at the outer door of the premises or at any such prominent place as may be found;

 

   (f)   in the case of a corporation or company, by delivering a copy to a responsible employee at its registered office or its principal place of business within the jurisdiction, or, if there is no such employee willing to accept service, by affixing a copy to the main door of such office or place of business, or in any manner prescribed by law;

 

   (g)   by delivering a copy thereof to any agent who is duly authorized in writing to accept service on behalf of the person upon whom service is to be effected;

 

   (h)   where any partnership, firm or voluntary association is to be served, service shall be effected upon a partner, the proprietor, or on the chairman or secretary of the committee, or other managing body of such association as the case may be, in one of the manners set forth in this rule;

 

   (i)   where a local authority or statutory body is to be served, service shall be effected by delivering a copy to the council secretary, assistant council secretary, town clerk or assistant town clerk, chairman or mayor of such local authority, or to the secretary or member of the board or committee of such body, or in any manner provided by law;

 

   (j)   if two or more persons are sued in their joint capacity as trustees, liquidators, executors, administrators, curators or guardians, or in any other joint representative capacity, service shall be effected upon each of them in any manner set out in this rule; or

 

   (k)   where a person to be served keeps his residence or place of business closed, and thus prevents the Deputy-Sheriff or any other person effecting service from serving the process, it shall be sufficient to affix a copy thereof to the outer principal door of such residence or place of business.

   (3) It shall be the duty of the Sheriff or the person serving a process or document to explain the nature and contents thereof to the person upon whom service is being effected, and to state in his return that he has done so.

   3. (1) If the plaintiff (or a defendant in the case of proceedings involving a third party) experiences difficulty in effecting personal service on a defendant or other party to the proceedings, he may apply to the judge for leave to effect substituted service of the process on such defendant.

   (2) Such an application shall be supported by an affidavit deposing as to the efforts that have been made to effect personal service of the process and stating the last known residence or place of business of the defendant or other party within the jurisdiction.

   (3) Upon hearing such application the judge may order that substituted service be effected on the defendant or other party by sending the process by pre-paid registered post to the last known place of residence or place of business of the defendant or other party within the jurisdiction or by advertisement in a local newspaper circulating in the area where the defendant or other party had his last place of residence or place of business.

   (4) If the plaintiff (or defendant in the case of proceedings involving a third party) experiences difficulty in effecting service on a corporation or company under rule 2 (2) (f), he may apply under subrule (3) for leave to effect substituted service.

   4. Service of any process or of any document in a foreign country shall be effected by any person authorized under the law of that country to serve therein.

   5. Service shall be proved in one of the following manners-

 

   (a)   where service has been effected by the Sheriff, by the return of service of such Sheriff;

 

   (b)   where service has not been effected by the Sheriff, by an affidavit of the person who effected service, or in the case of service on an attorney or a member of his staff, the Government of Botswana, on any Minister, or any other officer of such Government in his capacity as such, by the production of a signed receipt therefor.

   6. Service of any process or document in a foreign country shall be proved by a certificate of the person effecting service in which he identifies himself, states that he is authorized under the law of the country to serve process or documents therein, and that the process or document in question has been served as required by the law of that country, and sets forth the manner and the date of such service.

   7. Whenever the judge, or the Registrar when acting under Order 30, is not satisfied as to the effectiveness of the service, he may order such steps to be taken as to him seems meet.

   8. Any summons, writ, warrant, rule or notice, or other process, document or communication which by law, rule of court, or agreement of the parties is required or directed to be served or executed upon any person or left at the house or place of abode or a place of business or employment of any person in order that such person may be affected thereby may be transmitted to the server by telegraph or telefacsimile and a telegraphic or telefacsimile copy served or executed upon such person or left at his house or place of abode or business or employment shall be of the same force and effect as if the original had been shown to or a copy thereof served upon such person, or left as aforesaid, as the case may be.

   9. Service of any such process on the offices of an attorney by facsimile transmission shall be effective provided that it is proved that a legible copy was so served.

ORDER 9
ENTRY OF APPEARANCE TO SUMMONS

   1. (1) Subject to subrule (2) and to Order 7, a defendant to an action begun by writ of summons (whether or not he is sued as a trustee or personal representative or in any other representative capacity) may enter an appearance in the action and defend it by an attorney or in person.

   (2) A public company may not enter an appearance in the action or defend it otherwise than by counsel.

   (3) An appearance is entered by properly completing and delivering a memorandum of appearance.

   (4) Delivery to the plaintiff of a memorandum of appearance may be effected by sending by post to the plaintiff, if the plaintiff sues in person, but otherwise to the plaintiff's attorney, at the plaintiff's address for service, a copy of the memorandum of appearance on the day it is date stamped by the Registrar.

   (5) If two or more defendants to an action enter an appearance by the same attorney and at the same time, only one memorandum need be completed and delivered for those defendants.

   2. (1) A memorandum of appearance is a request to the Registrar to enter an appearance for the defendant or defendants specified in the memorandum.

   (2) A memorandum of appearance must be signed by the attorney by whom the defendant appears, or, if the defendant appears in person, by the defendant.

   (3) A memorandum of appearance must specify-

 

   (a)   a physical and postal address within the jurisdiction;

 

   (b)   in the case of a defendant appearing by an attorney, a business address of the attorney within the jurisdiction, and where the defendant enters an appearance in person, the address specified under paragraph (a) shall be his address for service, but otherwise his attorney's address shall be his address for service;

 

   (c)   concisely the nature and the grounds of the defence and the relief or remedy required.

   (4) The Registrar shall refuse to receive or date stamp an appearance which does not comply with subrules 2(2) or 2(3).

   (5) Where the defendant enters an appearance by an attorney who is acting as agent for another attorney, having a place of business within the jurisdiction, the memorandum of appearance must state that the first-named attorney so acts, and must also state the name and address of that other attorney.

   (6) Immediately on entry of appearance to defend, the Registrar shall deliver the file to the judge.

   (7) If on application by the plaintiff the judge is satisfied that any address specified in the memorandum of appearance is not genuine, the judge may set aside the appearance.

   3. (1) A defendant may not enter an appearance to an action after judgment has been entered therein except with the leave of the judge and after such judgment has been set aside.

   (2) Except as provided in subrule (1), nothing in these Rules or any writ of summons or order thereunder shall be construed as precluding the defendant from entering an appearance in an action after the time limited for appearing but before application has been made for judgment by default.

   4. (1) A defendant to an action may with the leave of the judge enter a conditional appearance in the action.

   (2) A conditional appearance, except by a person sued as a partner of a firm in the name of that firm and served as a partner, is to be treated for all purposes as an unconditional appearance unless the judge otherwise orders or the defendant applies to the judge within the time limited for the purpose for an order under rule 5 and the judge makes an order there under.

   5. A defendant to an action may at any time before entering an appearance therein, or, if he has entered a conditional appearance, within 14 court days after entering the appearance apply to the judge for an order setting aside the writ of summons or the service thereof on him, or declaring that the writ of summons has not been duly served on him, or discharging any order giving leave to serve the writ of summons on him out of jurisdiction.

ORDER 10
EDICTAL CITATION

   1. Except by leave of the judge, no process or document whereby proceedings are instituted shall be served outside the Republic.

   2. (1) Any person desiring to obtain such leave shall make application to the judge setting forth concisely the nature and extent of his claim, the grounds upon which it is based and upon which the judge has jurisdiction to entertain the claim, and also the manner of service which the judge is asked to authorize.

   (2) If such manner be other than personal service, the application shall further set forth the last known whereabouts of the person to be served and the enquiries made to ascertain his whereabouts.

   (3) Upon such application the judge may make such order as to the manner of service as to him seems meet and shall further order the time within which notice of intention to defend is to be given or any other steps to be taken by the person to be served.

   (4) Where service by publication is ordered, it may be in a form as near as may be in accordance with Form 3 in Schedule 1, approved and signed by the Registrar.

   3. Any person desiring to obtain leave to effect service outside Botswana of any document other than one whereby proceedings are instituted may either make application for such leave in terms of rule 2 or request such leave at any hearing at which the judge is dealing with the matter, in which latter event no papers need be filed in support of such request and the judge may act upon such information as may be given from the Bar, or given in such manner as he may require, and may make such order as to him seems meet.

ORDER 11
RENEWAL OF WRIT

   1. (1) No originating process shall, in the absence of service thereof or the taking of a further step, be in force for more than six months from the date of issue thereof, including the day of such date; but if any defendant named therein has not been served therewith the plaintiff may, before the expiration of the six months, apply to the Registrar in writing for leave to renew the originating process.

   (2) Where the Registrar is satisfied that reasonable efforts have been made to serve such defendant, or for other good reasons, he may renew the original or concurrent originating process for three months from the date of such renewal inclusive, and so from time to time during the currency of the renewed originating process.

   (3) The originating process shall in such case be renewed by being marked with the stamp of the court and shall bear the date of such renewal; such stamp to be impressed upon the originating process by the proper officer, upon delivery to him by the plaintiff or his attorney of a memorandum in Form 28 in Schedule 1 with such variations as circumstances may require.

   (4) An originating process so renewed shall remain in force and be available to prevent the operation of any statute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the originating process.

   2. The production of originating process purporting to be marked with the stamp of the court, showing the same to have been renewed in the manner aforesaid, shall be sufficient evidence of its having been so renewed, and of the commencement of the action as of the date of first issue of such renewed originating process for all purposes.

   3. After expiry of the period referred to in rule 1 (1) or of any final renewal granted in terms of rule 1 (2), the originating process shall lapse, and may not be revived.

   4. Nothing in this Order shall preclude the institution of fresh proceedings on the same cause of action, subject to the law relating to prescription.

ORDER 12
PETITIONS AND APPLICATIONS

   1. Except where proceedings by way of petition are prescribed by law, every application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief, and the notice of motion shall be in Form 4 in Schedule 1 with such variations as circumstances require, and shall state the rule under which the application is brought.

   2. When relief is claimed against any person, or where it is necessary or proper to give any person notice of such application, the notice of motion shall be addressed to both the Registrar and such person, otherwise it shall be addressed to the Registrar only.

   3. (1) Every petition shall conclude with the form or order prayed and be verified upon oath by or on behalf of the petitioner.

   (2) With every application the applicant shall file with the Registrar a draft of the order which he seeks.

   4. (1) Every application brought ex parte (whether by way of petition or upon notice to the Registrar supported by an affidavit as aforesaid) shall be filed with the Registrar and set down not less than two days before the day fixed for hearing, which shall, save with the leave of the judge, be on a motion day.

   (2) The application shall-

 

   (a)   set forth the form of the order sought;

 

   (b)   specify the affidavit filed in support thereof; and

 

   (c)   be as near as may be in accordance with Form 5 in Schedule 1.

   (3) At the hearing the judge may grant or dismiss the application, or grant interim relief, or may adjourn the application upon such terms as to service upon interested parties, the filing of further affidavits, or otherwise, as to him seem meet.

   (4) Any interested party so served may, within 14 court days of service, or such other time as the judge may order, deliver notice of his intention to oppose, supported by an affidavit setting forth the nature of such interest and the grounds upon which he opposes the relief sought, whereafter the Rules for applications on notice shall apply.

   5. (1) Every application other than one brought ex parte shall be served upon every party to whom notice thereof has to be given.

   (2) In such notice the applicant shall appoint a physical and postal address within Botswana at which he will accept notice and service of all documents in such proceedings, and shall set forth a day not less than five court days after service thereof on the respondent, on or before which such respondent is required to notify the applicant in writing whether he intends to oppose such application and shall further state that if no such notification is given the application will be set down for hearing on a stated motion day not being less than seven court days after service on the said respondent of the said notice.

   (3) If the respondent does not notify the applicant, on or before the day mentioned for that purpose in such notice, of his intention to oppose the notice the applicant may place the matter on the roll for hearing on a motion day by giving the Registrar notice of set down before noon on the court day but one preceding the day upon which the same is to be heard.

   (4) Any person opposing the grant of an order sought in the notice of motion shall-

 

   (a)   within the time stated in the said notice, give the applicant notice in writing that he intends to oppose the application and in such notice appoint a physical and postal address within Botswana at which he will accept notice and service of all documents;

 

   (b)   within 14 court days of the service on him of the notice of motion, deliver his answering affidavit, if any, together with any relevant documents; or

 

   (c)   if he intends to raise a question of law only, deliver notice of his intention to do so within the time stated in the preceding paragraph, setting forth such question:

   (4A) The provisions of subrule (4) shall apply notwithstanding the provisions of rule 2(2) of Order 42 unless the judge otherwise directs.

   (5) Within seven court days of the service upon him of the affidavit and documents referred to in paragraph (b) or (c) of subrule (4), the applicant may deliver a replying affidavit; and the judge may, in his discretion, permit the filing of further affidavits.

   (6) Where no answering affidavit or notice in terms of paragraph (b) or (c) of subrule (4) is delivered within the stipulated period referred to, the applicant may, on notice, set the application down for hearing on a motion day.

   (7) Where an answering affidavit or notice is delivered, the judge shall determine the date of hearing at the pre-trial conference.

   (8) Notice of hearing in writing of the date determined by the judge shall forthwith be given by the applicant to the registrar and to all parties in accordance with Form 29 in Schedule 1, unless the judge dispenses with this requirement.

   (9) The parties to any opposed application shall no later than two court days before the hearing file and serve heads of argument stating the authorities and principles on which they intend to rely, and the judge may if he deems fit limit the time for presentation of oral argument in the interests of expedition.

   (10) Where an application cannot properly be decided upon affidavit, the judge may dismiss the application or the judge at the pre-trial conference may make such order as to him seems meet with a view to ensuring a just and expeditious decision; and in particular, but without affecting the generality of the foregoing, he may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed to appear and be examined and cross-examined as a witness, or he may refer the matter to trial with appropriate directions as to pleadings or definition of issues or otherwise.

   6. The judge, after hearing an application, whether brought ex parte or otherwise, may make no order thereon (except as to costs, if any), but grant leave to the applicant to renew the application on the same papers supplemented by such further affidavits as the case may require.

   7. (1) Any party to any application proceedings may bring a counter application, or may join any party to the same extent as would be competent if the party wishing to bring such counter application or join such party were a defendant in an action and the other parties to the application were parties to such action; in the latter event, Order 16 shall apply mutatis mutandis.

   (2) The periods prescribed with regard to applications shall apply mutatis mutandis to counter applications.

   8. Any person against whom an interim order is granted ex parte may anticipate the return day upon delivery of not less than 24 hours' notice.

   9. A copy of every application to a judge in connection with the estate of any person deceased, or alleged to be a prodigal, or under any legal disability, mental or otherwise, shall, before such application is filed with the Registrar, be submitted to the Master for consideration and report; and if any person is to be suggested to the judge for appointment as curator to property, such a suggestion shall likewise be submitted to the Master for report.

   10. The provisions of rule 9 shall further apply to all applications for the appointment of administrators and trustees under deeds or contracts relating to trust funds or to the administration of trusts set up by testamentary disposition.

   11. Notwithstanding the foregoing rules, interlocutory and other applications incidental to pending proceedings may be brought on notice using Form 5 in Schedule 1 supported by such affidavits as the case may require and set down on a motion day or as directed by a judge.

   12. (1) In urgent applications the judge may dispense with the forms and service provided for in these Rules and may dispose of such matter at such time and place and in such manner, and in accordance with such procedure (which shall as far as practicable be in terms of these Rules) as to him seems meet.

   (2) In every affidavit filed in support of any application under subrule (1), the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.

   13. In any application against any minister or other officer or servant of the State in his capacity as such, the respective periods referred to in subrule (2) of rule 5, or for the return of a rule nisi, shall be not less than 14 court days after the service of the notice of motion, or the rule nisi, as the case may be, unless the judge specially authorizes a shorter period.

   14. (1) The judge may, on application, order to be struck out from any affidavit any matter which is scandalous, vexatious or irrelevant, with an appropriate order as to costs, including costs as between attorney and client.

   (2) The judge shall not grant the application unless he is satisfied that the applicant will be prejudiced in his case if it is not granted.

   15. (1) If when an opposed application or petition is called, the applicant or petitioner appears and the respondent does not appear, the applicant or petitioner may address the judge to justify the relief sought, and the judge may make such order as he sees fit.

   (2) If when an opposed application or petition is called, the respondent appears but the applicant or petitioner does not appear, the respondent may apply for the dismissal of the application or petition, and the judge may thereupon dismiss the application or petition, or make such other order as he sees fit.

   (3) If when an opposed application or petition is called, neither party appears, the judge shall strike the matter from the roll, whereafter it may only be restored upon application with good cause shown.

ORDER 13
AFFIDAVITS AND DEPOSITIONS

   1. Upon any motion, petition or other application, evidence shall be given by affidavit, but the judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit, and where after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence unless by the special leave of the judge.

   2. Every affidavit shall be entitled in the cause in which it is sworn.

   3. (1) Every affidavit shall contain only statements of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true stating the sources and grounds thereof.

   (2) An affidavit shall not contain extraneous matters by way of objection, prayer, legal argument or conclusion.

   4. Affidavits sworn in Botswana shall be sworn before a commissioner of oaths or other officer empowered to administer oaths under the Commissioners of Oaths Act.

   5. Every commissioner who administers an oath shall express-

 

   (a)   the time and date when and the place where he takes an affidavit, or

 

   (b)   the acknowledgement of any deed or recognizance, otherwise the affidavit shall not be held authentic, nor be admitted to be filed or enrolled without the leave of the judge; and every such commissioner shall express the time when, and the place where, he does any other act incidental to his office.

   6. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be, shall be confined to a distinct portion of the subject; and the affidavit shall be written or printed.

   7. Every affidavit shall state the description, the place of abode, and the occupation of the deponent.

   8. In every affidavit made by two or more deponents the names of the several persons making the affidavit shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the "above- mentioned" deponents.

   9. (1) Every affidavit to be used in any cause in the Principal Registry or in a Registry shall be filed in the Principal Registry or in the Registry, as the case may be.

   (2) There shall be endorsed on every affidavit a note showing on whose behalf it is filed, and no affidavit shall be used without such note, unless the judge otherwise directs.

   10. The judge may order to be struck out from any affidavit any matter which is scandalous, vexatious or irrelevant.

   11. No affidavit having in the jurat or body thereof any interlineations, alterations, or erasure shall, without leave of the judge, be read or made use of in any matter pending before the judge unless the interlineations or alterations (other than by erasure) are authenticated by the initials of the deponent and the officer taking the affidavit, nor in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are rewritten and signed or initialed in the margin of the affidavit by the deponent and the officer taking it.

   12. (1) Where an affidavit is sworn by any person who appears to the officer taking the affidavit to be illiterate or blind, the officer shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature or mark in the presence of the officer.

   (2) No such affidavit shall be used in evidence in the absence of this certificate, unless the judge is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent.

   13. The judge may receive any affidavit sworn for the purpose of being used in any cause, notwithstanding any defect by misdescription of the parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received.

   14. (1) No affidavit shall be sufficient if sworn before the attorney acting for the party on whose behalf the affidavit is to be used, or before any agent or correspondent of such attorney, or before the party himself.

   (2) Any affidavit which would be insufficient if sworn before the attorney himself shall be insufficient if sworn before his partner or an attorney practising in the same firm.

   15. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the judge.

   16. Every exhibit or annexure referred to in an affidavit shall be initialed by the deponent and the commissioner or officer before whom the affidavit is sworn on the date it is sworn to.

ORDER 14
PROVISIONAL SENTENCE

   1. Where by law any person may be summoned to answer a claim made for provisional sentence, proceedings shall be instituted by way of a summons as near as may be in accordance with Form 6 in Schedule 1, calling upon such person to pay the amount claimed or, failing such payment, to appear personally or by counsel upon a motion day named in such summons, not being less than seven court days after service upon him of such summons, to admit or to deny his liability.

   2. Such summons shall be issued by the Registrar and the provisions of rules 4 and 10 of Order 6 shall mutatis mutandis apply.

   3. Copies of all documents upon which the claim is founded shall be annexed to the summons and served with it.

   4. The plaintiff shall set down the case for hearing before noon on the court day but one preceding the day upon which it is to be heard.

   5. Upon the day named in the summons the defendant may appear personally or by counsel to admit or deny his liability and may, not later than noon of the court day but one preceding the day upon which he is called upon to appear in court, deliver an affidavit setting forth the grounds upon which he disputes liability. In such event, the plaintiff shall be afforded a reasonable opportunity of replying thereto.

   6. If at the hearing the defendant fails to appear, or admits his liability, or if he has previously filed with the Registrar an admission of liability signed by himself and witnessed by counsel acting for him and not acting for the opposite party, or, if not so witnessed, verified by affidavit, the judge may give final judgment against him.

   7. The judge may hear oral evidence as to the authenticity of the defendant's signature or that of his agent, to the documents upon which the claim for provisional sentence is founded.

   8. Should the judge refuse provisional sentence, he may order the defendant to file a plea within a stated time and may make such order as to costs of the proceedings as to it may seem just; and thereafter, the provisions of these Rules as to pleading and the further conduct of trial actions shall mutatis mutandis apply.

   9. Should the judge grant provisional sentence, the plaintiff shall on demand furnish the defendant with security de restituendo to the satisfaction of the Registrar against payment of the amount due under the judgment.

   10. Any person against whom provisional sentence has been granted may enter into the principal case only if he has satisfied the amount of the judgment for provisional sentence and taxed costs, or if the plaintiff on demand fails to furnish due security in terms of rule 9.

   11. A defendant entitled and wishing to enter into the principal case shall, within one month of the grant of provisional sentence, deliver notice of his intention to do so, in which event the summons shall be deemed to be a summons with declaration annexed thereto and he shall deliver a plea simultaneously; failing such notice and plea, the provisional sentence shall ipso facto become a final judgment and the security given by the plaintiff shall lapse.

ORDER 15
ARREST OF DEFENDANT

   1. (1) Where a plaintiff proves to the satisfaction of the Registrar that he has a good cause of action against a defendant to the amount of P40 000 or more, and that there is good ground for believing that the defendant is about to leave Botswana and that the absence of the defendant from Botswana will materially prejudice the plaintiff in the prosecution of his claim, the Registrar may issue a writ of arrest directing the defendant to be arrested and held to bail to answer the plaintiff's claim.

   (2) Prior to the issue of any such writ, the plaintiff shall lodge with the Registrar an affidavit sworn to by the plaintiff, or his agent, or his servant, in which shall be set forth all facts which would justify the Registrar in issuing, or refusing to issue, the said writ, and in particular the following-

 

   (a)   the sum alleged to be due to the plaintiff by the defendant, when it became due and the cause thereof;

 

   (b)   whether or not the plaintiff holds any security for the alleged debt and, if he does, the nature and value thereof;

 

   (c)   that the deponent believes that the defendant is about to remove from Botswana and the grounds of such belief; and

 

   (d)   the steps, if any, which the plaintiff has already taken to enforce his claim.

   2. A writ of arrest shall be in Form 7 in Schedule 1 and shall, before delivery to the Sheriffor his deputy, be endorsed with the plaintiff's address for service as required by rule 9 of Order 6.

   3. A writ of arrest may be executed on any day and at any hour and at any place except in regard to members and officers of Parliament during such period as may be prescribed under the National Assembly (Powers and Privileges) Act.

   4. The Registrar may before issuing a writ of arrest require the plaintiff to give security for any damages which may be caused by such writ of arrest and may require such additional evidence as he may think fit.

   5. (1) The sum of money or other thing demanded shall be set out in the writ of arrest and the cost and charges of issuing the writ shall be endorsed thereon by the Registrar.

   (2) The Sheriff or his deputy shall, upon any arrest made by virtue of any such writ, give to the defendant, at his request and at his charge, a true copy thereof and of all documents on which the claim is founded.

   6. (1) If on his arrest the defendant or anyone on his behalf gives to the Sheriff or his deputy reasonable security by bond or obligation of the said defendant, and of another person residing and having sufficient means within Botswana, that the defendant shall appear according to the exigency of the said writ and shall stand to abide, and perform the judgment of the judge thereon, or shall surrender himself to prison in execution of the same, or if the said defendant pays or delivers to the Sheriff or his deputy the sum of money or thing mentioned in the said writ, together with the costs and charges endorsed thereon, and the further costs of the execution of the writ, the Sheriff or his deputy shall permit the defendant to go at large and free of the said writ of arrest.

   (2) The bond or obligation to be given to the Sheriff or his deputy under subrule (1) shall be as near as may be in Form 8 in Schedule 1.

   7. If the defendant at any time after his arrest satisfies the claim contained in the writ, including the costs and charges endorsed thereon and the costs of the arrest, or if he gives a bond or obligation in terms of rule 6, he shall be entitled to immediate discharge from such arrest.

   8. If a bond or obligation has been given by the defendant or by anyone on his behalf in terms of rule 6, the plaintiff shall proceed with his action precisely as if there had been no arrest and the writ of arrest shall in that case stand as a writ of summons in the action.

   9. Unless otherwise ordered, the costs of and incidental to a writ of arrest shall be costs in the cause.

   10. Any person arrested shall be entitled to anticipate the day of appearance and to apply to the judge in term time or vacation for the discharge of the said arrest, upon giving 24 hours' notice to the attorney for the plaintiff, or to the plaintiff if he is not represented by an attorney.

   11. If the Sheriff or his deputy takes from the party arrested any money or thing for the plaintiff or any bond or obligation by virtue of any writ of attachment, then the Sheriff or his deputy shall, as soon as practicable, and being thereunto required by the plaintiff or his attorney, deliver over to the plaintiff or his attorney any such money or thing or assign to the plaintiff such bond or obligation by an endorsement thereon to be made by the Sheriff or his deputy under his hand, which endorsement shall be as near as may be in Form 9 in Schedule 1.

   12. If the defendant on the return day or on the day of the anticipation of the same as aforesaid admits the claim contained in the process, final judgment shall be given against him and he shall be discharged from such arrest.

   13. If the defendant has not satisfied or admitted the claim contained in the writ and has not given security as aforesaid, the plaintiff shall on the return day, or on the day of the anticipation of the same as aforesaid, apply for confirmation of arrest, when the judge, unless sufficient cause to the contrary is shown, shall confirm such arrest and order the return of the defendant to prison, but shall make such further order as to him seems meet so as to provide for the speedy termination of the proceedings between the parties, the writ standing as writ of summons in the case.

ORDER 16
JOINDER OF PARTIES AND CONSOLIDATION OF ACTIONS

   1. All persons may be joined in one action as plaintiffs in whom any right of relief (in respect of or arising out of the same transaction or series of transactions) is alleged to exist, whether jointly, severally or in the alternative where if such persons brought separate actions any common question of law or fact would arise:

   Provided that if, upon the application of any defendant, it appears that such joinder may embarrass or delay the trial of the action, the judge may order separate trials, or make such other order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment, but the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief, unless the judge in disposing of the costs otherwise directs.

   2. Where any action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful if it has been commenced in the name of the right plaintiff, the judge may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff subject to his consent in writing and upon such terms as may be just.

   3. Where in any action any person has been improperly or unnecessarily joined as a co-plaintiff, and a defendant has set up a counter-claim or set-off, he may obtain the benefit thereof by establishing his set-off or counter-claim as against the parties other than the co-plaintiff so joined, notwith-standing the mis-joinder of such plaintiff or any proceeding consequent thereon.

   4. All persons may be joined as defendants against whom the right to relief is alleged to exist, whether jointly, severally or in the alternative, and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

   5. It shall not be necessary that every defendant be interested as to all the reliefs prayed for, or as to every cause of action included in any proceeding against him; but the judge may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.

   6. Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in such manner as hereinafter mentioned, or as may be prescribed by any special order, join two or more defendants to the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between all parties.

   7. Trustees, curators, executors and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees, curators or representatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons; but the judge may, at any stage of the proceedings, order any of such persons to be made parties either in addition to or in lieu of the previously existing parties.

   8. Where there are numerous persons having the same interest in one cause, one or more of such persons may sue or be sued, or may be authorized by the judge to defend such cause on behalf of or for the benefit of all persons so interested, provided that he or they are duly authorized to represent all such persons

   9. (1) No cause shall be defeated by reason of the mis-joinder or non-joinder of parties, and the judge may in every cause deal with the matter in controversy so far as regards the rights and interests of the parties actually before him.

   (2) The judge may at any stage of the proceedings, either upon or without the application of either party, or upon the application of any party who claims to be interested, and on such terms as may appear to the judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the judge may be necessary in order to enable the judge effectually and completely to adjudicate upon and settle all the questions involved in the cause, be added.

   (3) A person shall not be added as a plaintiff without his own consent in writing thereto.

   (4) Every party whose name is so added as defendant shall be served with a writ of summons, petition or notice of motion in the manner hereinafter mentioned, or in such manner as may be prescribed by a special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ of summons, petition or notice of motion.

   10. Any application to add to or strike out or substitute a plaintiff or defendant may be made to the judge at any time before trial by motion, or at the trial of the action in a summary manner and may be granted on such terms as the judge deems fit.

   11. Where a defendant is added or substituted the writ of summons, petition or motion shall be amended accordingly, and the plaintiff shall, unless otherwise ordered by the judge, file a copy of the writ of summons, petition or motion as amended and serve the new defendant with such amended writ of summons, petition or motion in the same manner as original defendants are served, and the proceedings shall be continued as if the new defendant had originally been made a defendant.

   12. (1) Subject to the provisions of the Abolition of Marital Power Act, a married person can sue or be sued without the assistance of his or her spouse.

   (2) A plaintiff or defendant who is married in community of property shall, if so required by section 13 of the Abolition of Marital Power Act, file with his or her originating process or defence the written consent of his or her spouse to the institution or defence of proceedings.

   13. Where separate actions have been instituted, and it appears to the judges of each such action in consultation, convenient to do so, the judge of the action first registered may upon the application of any party thereto, and after notice to all interested parties, make an order consolidating such actions, whereupon-

 

   (a)   the said actions shall proceed as one action;

 

   (b)   the provisions of this Order shall mutatis mutandis apply with regard to the action so consolidated; and

 

   (c)   the judge making such order may make any additional order which to him seems meet with regard to the further procedure, and may give one judgment disposing of all matters in dispute in the said actions.

ORDER 17
THIRD PARTY PROCEDURE

   1. Where a party in any action claims-

 

   (a)   as against any other person not a party to the action (hereinafter called a "third party"), that such party is entitled in respect of any relief claimed against him, to a contribution or indemnification from such third party; or

 

   (b)   that any question or issue in the action is substantially the same as a question or issue which has arisen or will arise between such party and the third party and should properly be determined not only as between any parties to the action but also as between such parties and the third party or between any of them,such party may issue a notice (hereinafter referred to as a "third party notice"), as near as may be in accordance with Form 10 in Schedule 1, which notice shall be served by the party issuing this upon the third party and any other party to the action.

   2. Such notice shall state the nature and grounds of the claim of the party issuing the same, the question or issue to be determined, and any relief or remedy claimed; and in so far as the statement of the claim and the question or issue are concerned, the rules with regard to pleadings and to summonses shall mutatis mutandis apply.

   3. The third party notice shall be served before or concurrently with the delivery of the first pleading delivered by the party issuing it in the action in connection with which it is issued and shall be accompanied by a copy of all pleadings filed in the action up to the date of service.

   4. (1) If the third party intends to contest the claim set out in the third party notice, he shall deliver notice of intention to defend as if to a writ of summons.

   (2) Immediately upon receipt of such notice, the party who issued the third party notice shall inform all other parties accordingly.

   5. The third party shall, after service upon him of a third party notice, be a party to the action and, if he delivers notice of intention to defend, shall be served with all documents and given notice of all matters as a party.

   6. (1) The third party may plead or except to the third party notice as if he were a defendant to the action; he may also, by filing a plea, or other proper pleading, contest the liability of the party issuing such notice on any ground notwithstanding that such ground has not been raised in the action by such latter party:

   (2) The third party shall not be entitled to claim in reconvention against any person other than the party issuing the party notice, except to the extent that he would be entitled to do so in terms of Order 25.

   7. The rules with regard to the filing of further pleadings shall apply to third parties as follows-

 

   (a)   insofar as the third party's plea relates to the claim of the party issuing the notice, the said party shall be regarded as the plaintiff and the third party as the defendant;

 

   (b)   insofar as the third party's plea relates to the plaintiff's claim, the third party shall be regarded as a defendant, and the plaintiff shall file pleadings as provided by the said rules.

   8. Where a party to an action has against any other party (whether either such party became a party by virtue of any counter-claim by any person, or by virtue of a third party notice, or by any other means), a claim referred to in rule 1, he may issue and serve on such other party a third party notice in accordance with the provisions of this rule; except that no further notice of intention to defend shall be necessary, the same procedure shall apply as between the parties to such notice and they shall be subject to the same rights and duties as if such other party had been served with the third party notice in terms of rule 1.

   9. Any party who has been joined as such by virtue of a third party notice may at any time make application to the judge for the separation of the trial of all or any of the issues arising by virtue of such third party notice, and the judge may upon such application make such order as to him seems meet, including an order for the separate hearing and determination of any issue, on condition that his decisions on any other issue arising in the action, either as between the plaintiff and the defendant, or as between any other parties, shall be binding upon the applicant.

ORDER 18
PROCEEDINGS BY OR AGAINST PARTNERSHIPS AND ASSOCIATIONS

   1. In this rule-

   "association" means any unincorporated body of persons capable of owning a beneficial interest in property not being a partnership and shall include a trust;

   "plaintiff and defendant" include applicant and respondent

   "sue" and "sued" are used in relation to actions and applications.

   2. A partnership or an association may sue or be sued in its name.

   3. A plaintiff suing a partnership need not allege the names of the partners; if it does, any error of omission or inclusion shall not afford a defence to the partnership.

   4. (1) A plaintiff suing a partnership may include in any writ of summons a notice calling for particulars of the full name and residential address of each partner as at the relevant date.

   (2) The defendant shall within seven court days deliver a written statement containing such information.

   (3) Concurrently with the said statement, the defendant shall serve upon the persons referred to in subrule (2) a notice as near as may be in accordance with Form 11 in Schedule 1 and deliver proof by affidavit of such service.

   (4) A plaintiff suing a partnership and alleging in the writ of summons or notice of motion that any person was at the relevant date a partner, shall notify such partner accordingly by delivering a notice as near as may be in accordance with Form 11 in Schedule 1.

   (5) Any person served with a notice in terms of subrule (3) or (4) shall be deemed to be a party to the proceedings with the rights and duties of a defendant.

   (6) Any party to such proceedings may aver in the pleadings or affidavit that such person was at the relevant date a partner or that he is estopped from denying such status.

   (7) If any party to such proceedings disputes such status, the judge may at any time decide that issue in limine.

   (8) Execution in respect of a judgment against a partnership shall first be levied against the assets thereof, and, after such execution, against the private assets of any person held to be, or held to be estopped from denying his status as a partner, as if judgment had been entered against him.

   5. The preceding rule shall apply mutatis mutandis to a defendant sued by a partnership.

   6. If a partnership is sued and it appears that since the relevant date it has been dissolved, the proceedings shall nevertheless continue against the persons alleged by the plaintiff or stated by the partnership to be partners, as if sued individually.

   7. (1) A plaintiff suing an association may include in any writ of summons or notice of motion a notice calling for a certified copy of its current constitution and a list of the names and addresses of the office bearers and their respective offices at the relevant date.

   (2) Such notice shall be complied with within seven court days.

   (3) Subrules (1) and (2) shall apply mutatis mutandis to a defendant sued by an association.

   8. Subrules (4) to (8) inclusive of rule 4 shall apply mutatis mutandis when-

 

   (a)   a plaintiff alleges that any member, servant or agent of the defendant association is liable in law for its alleged debt; or

 

   (b)   a defendant alleges that any member, servant or agent of the plaintiff association will be responsible in law for the payment of any costs which may be awarded against the association.

   9. Rule 6 shall apply mutatis mutandis in regard to the continuance of proceedings against any member, servant or agent referred to in paragraph (a) of rule 8.

   10. If the party requested to furnish any particulars as aforesaid fails to deliver them timeously or sufficiently, the party requesting the same may apply to the judge for an order for their delivery or for the dismissal of the action or the striking out of the defence, whereupon the judge may make such order as to him seems meet.

ORDER 19
CHANGE OF PARTIES

   1. No proceedings shall terminate solely by reason of the death, marriage or other change of status of any party thereto unless the cause of such proceedings is thereby extinguished.

   2. Whenever by reason of an event referred to in rule 1 it becomes necessary or proper to introduce a further person as a party in such proceedings (whether in addition to or in substitution for the party to whom such proceedings relate) any party thereto may forthwith by notice to such further person, to every other party, and to the Registrar, add or substitute such further person as a party thereto, and subject to any order made under rule 4 hereof, such proceedings shall thereupon continue in respect of the person thus added or substituted as if he had been a party from the commencement thereof and all steps validly taken before such addition or substitution shall continue to be of full force and effect:

   Provided that except with the leave of the judge granted on such terms (as to adjournment or otherwise) as to him may seem meet, no such notice shall be given after the commencement of the hearing of any opposed matter; and provided further that the copy of the notice served on any person joined thereby as a party to the proceedings shall (unless such party is represented by an attorney who is already in possession thereof), be accompanied in application proceedings by copies of all notices, affidavits and material documents previously delivered, and in trial matters by copies of all pleadings and like documents already filed of record.

   3. Whenever a party to any proceedings dies or ceases to be capable of acting as such, his executor, curator, trustee or similar representative may by notice to all other parties, and to the Registrar, intimate that he desires in his capacity as such thereby to be substituted for such party, and, unless the judge otherwise orders, he shall thereafter for all purposes be deemed to have been so substituted.

   4. The judge may upon notice of application delivered by any party within 21 court days of service of notice in terms of rule 2 or 3 set aside or vary any addition or substitution of a party thus effected, or may dismiss such application or confirm such addition or substitution on such terms, if any, as to the delivery of any affidavits or pleadings, or as to postponement or adjournment, or as to costs or otherwise, as to him may seem meet.

ORDER 20
PLEADING GENERALLY

   1. Every pleading shall state the title of the action and the description of the pleading and on the last sheet of it there shall be endorsed the name and address of the attorney filing the same, or the name and address of the party if he does not act by an attorney.

   2. (1) Every pleading shall be filed with the Registrar and, except in the cases provided for by these Rules, a copy of it shall be delivered by the party to the other party or parties to the action on the same day as it is filed, or as soon thereafter as is practicable.

   (2) After registration, every pleading to be served or filed shall be endorsed on its first page with the name of the judge to whom the case has been allocated.

   3. (1) Every pleading shall be legibly written or typed on A4 paper, and shall, when necessary, be divided into paragraphs numbered consecutively, each paragraph containing as nearly as may be a separate allegation.

   (2) The year, day of the month, sums and numbers shall be expressed in figures and not in words.

   (3) Where pleadings have been settled by counsel, they shall be signed by him, or on his behalf, and if not so settled they shall be signed by the party if he intends to appear in person.

   4. (1) Every allegation in a declaration or claim in reconvention shall be dealt with by the opposite party specifically.

   (2) He must admit or deny every allegation or state that he has no knowledge concerning it, or confess and avoid it.

   (3) Every allegation not so dealt with shall be taken to be admitted.

   (4) Every pleading and every annexure or documentary exhibit shall be in the English language, provided that where the original or best copy is in another language, it shall be accompanied by an English translation certified as accurate by a sworn translator or by an officer of the court (including a legal practitioner) who is fluent in the language in question and in English.

   (5) The same rule stated in the preceding provisions of this rule shall apply to any allegation in subsequent pleadings, except where a joinder of issue is justified.

   5. (1) When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but must answer the point of substance; thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else state how much he received.

   (2) When a fact is alleged with diverse circumstances, it shall not be sufficient to deny it along with these circumstances, but a fair and substantial answer must be given.

   6. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be stated in the pleading.

   7. Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be, with a specific averment as to whether or not is was fulfilled.

   8. The   defendant or plaintiff, as the case may be, must raise by his pleading all matters which show the action or claim in reconvention not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply (as the case may be) as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, res adjudicata, lis pendens, fraud, prescription, release, payment, performance or acts showing illegality either by statute or common law.

   9. No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

   10. Wherever it is material to allege notice to any person of any fact or thing, it shall be sufficient to allege such notice as a fact, unless the form or precise terms of such notice, or the circumstances from which such notice is to be inferred, are material.

   11. Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied (for instance, consideration for a bill of exchange, where the plaintiff sues only on the bill and not for the consideration as a substantive ground of claim).

   12. (1) A party who in his pleadings relies upon a contract shall state whether the contract is written or oral, and when, where and by whom it was concluded and, if the contract is written, a true copy thereof or of the part relied on shall be annexed to the pleading.

   (2). When a contract, promise or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial of fact of the express contract, promise or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, promise or agreement.

   13. Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document, or any part thereof, are material.

   14. Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred:

   Provided that the judge may direct that particulars of such circumstances be given to the opposite party.

   15. A plaintiff suing for damages shall set them out in such manner as will enable a defendant reasonably to assess the quantum thereof:

   Provided that a plaintiff suing for damages for personal injury shall specify his date of birth, the nature and extent of the injuries and the nature, effects and duration of the disability alleged to give rise to such damages, and shall, as far as practicable, state separately what amount, if any, is claimed for-

 

   (a)   medical, hospital and other similar expenses and how these costs and expenses are made up;

 

   (b)   pain and suffering, stating whether temporary or permanent and which injuries caused it; or

 

   (c)   disability in respect of-

 

      (i)   the earning of income (stating earnings lost to date and how the amount is made up, and the estimated future loss, and the nature of the work the plaintiff will in future be able to do),

 

      (ii)   the enjoyment of amenities of life (giving particulars) and stating whether the disability concerned is temporary or permanent, and

 

      (iii)   disfigurement with a full description thereof, and stating whether it is temporary or permanent.

   16. A joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined, but it shall except any facts which the party may be willing to admit and shall then operate as a denial of the facts not so admitted.

   17. (1) Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party may, within the time period allowed for filing any subsequent pleading, and before filing any other pleading, deliver an exception thereto and, subject to subrule (2), then the party delivering the exception may enroll it for hearing on a motion day, or make application for directions under Order 28.

   (2) Before enrolling or applying at any case management conference for the hearing of an exception, the excipient shall, by his notice of exception, accord to his opponent the opportunity of removing his cause of complaint within 10 court days, failing which removal the application may be made.

   (3) Upon hearing an exception, the judge may-

 

   (a)   dismiss the exception, in which event the subsequent pleading shall be filed and delivered within 10 court days of such dismissal;

 

   (b)   uphold the exception, and

 

      (i)   dismiss the action or defence, as the case may be, or

 

      (ii)   allow such amendment as may be necessary to remove the cause of complaint, in which event the subsequent pleading shall be filed and delivered in terms of paragraph (a) above; or

 

   (c)   make such other order as he deems just to ensure the expeditious disposal of the case.

   18. (1) Where any pleading contains averments which are scandalous, vexatious or irrelevant, the opposing party may, within the period allowed for filing any subsequent pleading, and before filing any further pleading, file and deliver a notice of application to strike out such averments, and by such notice shall accord his opponent an opportunity of removing the cause of complaint within 10 court days, failing which removal the party delivering the application may enroll it for hearing on a motion day, or may make application for directions under Order 28.

   (2) On hearing an application to strike out, the judge may-

 

   (a)   dismiss the application, in which event the subsequent pleading shall be filed and delivered within 10 court days thereafter; or

 

   (b)   order to be struck out the offending averments or any part thereof; or

 

   (c)   make such other order as to amendment or otherwise as he deems just to ensure the expeditious disposal of the case.

   19. (1) Where a party, in order to plead requires a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in a pleading, that party shall, within the period allowed for filing the subsequent pleading, and before filing any other pleading, deliver a notice of application for such better statement or further particulars, and by such notice shall allow the other party 10 court days within which to deliver such better statement or further particulars.

   (2) Upon failure of the other party to deliver the said statement or particulars within the time allowed, the party requiring the better statement or further particulars may apply for an order on a motion day, or make application for directions under Order 28.

   (3) On hearing the application to deliver the better statement or particulars, the judge may-

 

   (a)   dismiss the application; or

 

   (b)   order the delivery of the better statement or further particulars within a stated period.

   (4) If the better statement or further particulars are still not delivered within the stated period, the requesting party may apply for an order on a motion day, or make application for directions under Order 28.

   (5) On hearing the application the judge may-

 

   (a)   dismiss the action or defence, as the case may be; or

 

   (b)   strike out the averments in respect of which further particulars were sought; or

 

   (c)   make such other order as he deems just so as to ensure the expeditious disposal of the case.

   (6) After delivery of the better statement or further particulars, the requesting party shall deliver his plea or replication or other answer within 10 court days of such delivery.

   20. Any party wishing to raise a special plea in bar or in abatement shall at the same time plead over to the substantive claim.

   21. No technical objection shall be raised to any pleading on the ground of any alleged want of form.

   22. Where in these Rules a copy of any pleading is ordered to be delivered by a party to another party, and one or other of the parties, or any of them, are represented by attorneys, it shall be delivery by or to the attorney of the party at the address for service.

   23. If in any pleading a party fails to comply with any of the provisions of this Order, such pleading shall be deemed to be an irregular step, and the other party or parties or any of them shall be entitled to act in accordance with Order 33.

ORDER 21
CLOSE OF PLEADINGS

   1. Except where otherwise ruled or ordered by the judge, where a pleading subsequent to replication is not ordered, then, at the expiration of 14 court days from the service of the plea or replication (if a replication has been filed) or, where a pleading subsequent to replication is ordered, and the party who has been ordered or given leave to file the same fails to do so within the period limited for that purpose, then, at the expiration of the period so limited, the pleadings shall be deemed to be closed and material statements of fact in the pleading last served shall be deemed to have been denied and put in issue:

   Provided that this rule shall not apply to a plea in reconvention and that unless the plaintiff files a plea in reconvention the statements of facts contained in such claim in reconvention shall, at the expiration of 14 court days from the service thereof or of such time (if any) as may by order be allowed for filing of a plea thereto, be deemed to be admitted, but the judge may at any subsequent time give leave to the plaintiff to file a plea in reconvention.

ORDER 22
ENTRY FOR TRIAL

 

(Deleted)

ORDER 23
DISMISSAL FOR WANT OF PROSECUTION

   1. Where in any action no step has been taken by either party for six months or more a party may apply for the dismissal of the action or, failing such application by a party, the Registrar shall list it before the judge on a motion day for dismissal for want of prosecution on that date and serve notice thereof on all parties thereto.

   2. On the action being called the judge shall dismiss the action with costs unless sufficient reason is shown to the contrary.

   3. If the judge decides not to dismiss the case, he shall impose conditions for the future conduct of the proceedings and give directions for the expeditious disposal of the case.

   4. Where at a roll-call or status hearing initiated by the judge on notice to the parties it appears that no step has been taken by either party for six months or more, the judge may dismiss the action and/or any counterclaim with costs.

ORDER 24
DECLARATION

   1. The full statement of the plaintiff's claim shall be called his declaration, and it shall state truly and concisely the name and description of the party suing and his place of residence or place of business, and, if he sues in a representative capacity, the capacity in which he sues; the name of the defendant and his place of residence or place of business and, if he is sued in a representative capacity, the capacity in which he is sued; the nature, extent and grounds of the cause of action, complaint or demand.

   2. Every declaration shall-

 

   (a)   state specifically the relief which the plaintiff claims, either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the judge may think just to the same extent as if it had been asked for; and the same rules shall apply to any claim in reconvention made, or relief claimed by the defendant in his claim in reconvention; and

 

   (b)   be accompanied by-

 

      (i)   an affidavit or affidavits by persons having direct knowledge thereof setting out the facts relied upon; and, where summary judgment is sought, making the averments required by rule 2(1) of Order 34, and

 

      (ii)   copies of the documentary exhibits to be relied upon or, in the case of a running account, a statement of account from inception stating with descriptions thereof all debits and credits and the outstanding balance.

   3. Where the plaintiff seeks relief in respect of several distinct claims, or causes of action, founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly; and the same rule shall apply where the defendant relies upon several distinct grounds of defence, set off or claim in reconvention, founded upon separate and distinct facts.

   4. A declaration shall be filed within 14 court days of entry of appearance, and may be accompanied by an application for summary judgment.

   5. A copy of the declaration shall be delivered by the plaintiff to the defendant on the same day as it is filed with the Registrar, or as soon thereafter as is practicable.

   6. In his declaration a plaintiff may alter, modify or extend his claim or claims as stated in the writ, and the writ shall thereupon be deemed to be amended in accordance with the claim or claims made in the declaration:

   Provided that where the defendant shows that he is prejudiced by such amendment the judge may make such order as to costs or otherwise as the justice of the case demands.

   7. This Order shall not apply to declarations to be delivered in matrimonial causes, which declarations shall meet the requirements of the rules promul-gated under the Matrimonial Causes Act.

   8. (1) Should the plaintiff fail to file and serve his declaration within the time allowed, the defendant may, on notice, make application on a motion day for dismissal of the action, or make application for directions under Order 28.

   (2) On hearing such an application, the judge may-

 

   (a)   dismiss the action;

 

   (b)   extend the period for filing the declaration; or

 

   (c)   make such other order as he deems fit to ensure the expeditious disposal of the case.

ORDER 25
PLEA AND CLAIM IN RECONVENTION

   1. (1) The defendant's answer to the plaintiff's declaration shall be called his plea, and it shall set forth concisely the nature of his defence and deal with the allegations in the declaration as provided by rule 4 of Order 20.

   (2) The plea shall be accompanied by-

 

   (a)   an affidavit or affidavits by persons having direct knowledge thereof setting out the facts relied upon, and where summary judgment is sought, the averments required by rule 3(b) of Order 34; and

 

   (b)   copies of all the documentary exhibits to be relied upon in the defence.

   2. Where the judge is of opinion that any allegation of fact denied or not admitted by the defendant ought to have been admitted, the judge may make such order as shall be just with respect to any extra costs occasioned by it having been denied or not admitted.

   3. (1) The defendant shall, unless the judge gives leave to the contrary, file and deliver his plea, exception, request for particular

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