Key Benefits:
(2) The particulars to be recorded in the Criminal Record Book shall include the following—
(a) date of hearing;
(b) number of the case;
(c) name and description of the accused;
(d) crime or offence charged;
(e) verdict;
(f) sentence or other disposal; or
(g) remarks, including date and effect of any order of a superior court on review or appeal.
(3) In addition to the Criminal Record Book, the clerk of the court shall, where applicable, keep these particulars in electronic form through the court record management system which shall be updated as soon as entry has been made in the Criminal Record Book.
(4) The charge sheet shall, when the case first comes before the court, be numbered by him with a consecutive number for the year and the case shall then be entered in the Criminal Record Book and in electronic form, under that number.
(5) The magistrate at the hearing shall cause to be recorded in the Criminal Record Book and in electronic form, any sentence imposed or other order of disposal made by him including acquittal or other discharge, postponement of sentence, adjournment or referral to another court or committal for trial.
2. (1) The court reporter shall, in any criminal trial, record in shorthand verbatim—
(a) the plea and statement of the accused;
(b) the evidence given orally;
(c) any exception or objection taken during the course of the proceedings;
(d) the rulings and judgment of the court; and
(e) such other portion of the proceedings as the court may specifically indicate.
(2) The court reporter shall be an officer of the court and shall, before assumption of duty, take an oath before a judicial officer in Form 50 set out in Schedule 1.
(3) The shorthand notes taken in terms of subrule (1) shall be certified as correct by the court reporter and shall constitute the official record of the proceedings of the case.
(4) The clerk of the court shall thereafter file the shorthand notes together with the record of the case.
(5) The notes shall be transcribed within 30 days after the conclusion of the trial, unless the magistrate at the trial otherwise directs, and the transcription shall be certified as correct by the person making it and also filed with the record.
(6) Shorthand notes and transcripts certified as provided under subrule (3) shall be deemed to be correct and shall form part of the record of the proceedings in the trial except that the court may, on application by the prosecutor or by the accused made within 14 days after the conclusion of the trial or after the completion of the transcription of such notes, order the amendment of such notes or transcript.
3. (1) Where, by direction of the judicial officer in terms of subrule (3), the shorthand notes have not been transcribed, any person may, at any time by notice to the clerk of the court require that a transcription be made.
(2) Any person, other than a Government department, prosecutor or the accused, so requiring transcription, shall pay to the clerk of the court at the time of making the request fees at such rates as the Chief Justice may from time to time prescribe.
(3) Any person entitled to inspect the record of proceedings shall pay the prescribed fee.
(4) The request to inspect the record under subrule (3) shall be as near as possible to Form 49 set out in Schedule 1.
ORDER 49
ASSIGNMENT OF CRIMINAL CASES
1. (1) The clerk of the court shall—
(a) allocate each existing case; and
(b) allocate any case upon registration to a magistrate who shall, from the time of such allocation, manage the case to its completion.
(2) In the event of any magistrate becoming unable, for any reason, to manage or continue to manage a case under this Order, the clerk of the court shall immediately, upon that inability being known, allocate the case to another magistrate and advise all parties in writing of such allocation; and the magistrate allocated the case shall be bound by all decisions and rulings given by the previous magistrate.
2. (1) In the event of any magistrate leaving a partly-heard case and is unable to complete it or the matter is unable to proceed for any reason beyond the control of the court, the magistrate heading the station or the regional magistrate shall reallocate the case to be tried afresh.
(2) Where the case is pending judgment and the judgment has been writ-ten, such judgment may be read by any other magistrate if directed to do so and proceed to sentence the accused.
(3) If sentence is not passed upon an offender immediately upon his conviction, any magistrate may, in the absence of the magistrate who convicted the offender, pass sentence on the offender after consideration of the evidence recorded and in the presence of the offender.
3. If the case is pending judgment and the accused does not appear on the set date, then the court may, unless good cause is shown, deliver judgment and proceed to sentence the accused in his absence.
ORDER 50
CRIMINAL APPLICATIONS
1. Except where otherwise provided in any other written law, an application in criminal cases may be made verbally.
2. Where the application is opposed, the court may order the filing of affidavits.
3. Where a party does not appear, the court may hear and determine an application in the absence of such party and make an order as it deems just.
ORDER 51
ARRAIGNMENT PROCEDURE
1. The arraignment of the accused shall constitute the initial case management conference and shall be conducted in open court, unless the magistrate directs otherwise.
2. (1) The magistrate shall read and explain the charges which shall, if necessary, be interpreted to the accused in a language which he understands.
(2) The magistrate shall ask the accused to plead to the charge and such plea shall be entered on the record of proceedings.
(3) The magistrate shall, on good cause shown by the prosecution, reserve the accused's plea.
3. (1) Where a plea of not guilty is entered, the magistrate shall inquire as to—
(a) whether or not the accused will engage legal representation;
(b) whether the accused has been served with all copies of witnesses' statements and other documentary evidence which the prosecution intends to adduce during trial; and
(c) the number of witnesses to be called.
(2) The magistrate may then order—
(a) that the defence be served with copies of all witnesses' statements and any documentary evidence which the prosecution intends to produce;
(b) that the prosecution prepare a summary of its case; and
(c) if the accused intends to engage an attorney, that he appears with the attorney at the next case management conference.
(3) Where the accused is represented by an attorney, the attorney shall inform the court of that status, in writing, at least seven days before the date set for the case management conference.
(4) Once a trial date is set, no attorney shall be permitted to renounce his agency during the 10 days immediately preceding the trial date except with the leave of the magistrate upon good cause shown, which shall not include the failure of a client to pay fees.
(5) The failure of an attorney to appear or to file a notice of renunciation in terms of subrule (4) shall amount to contempt.
(6) The magistrate shall set the date for the next case management conference.
4. (1) At the case management conference the following shall be discussed—
(a) summary of the prosecution's case;
(b) admissions by the defence;
(c) amendment of the charge or change of plea;
(d) production, inspection or admission of exhibits;
(e) length of trial;
(f) trial dates;
(g) relevance of witnesses;
(h) interlocutory applications including objections to identified witnesses and exhibits;
(i) any proposals to expedite the trial;
(j) prospects for reconciliation;
(2) The magistrate shall, immediately after completion of the final case management conference issue a case management order in Form 52 set out in Schedule 1.
5. (1) If the accused, his attorney or the prosecution fails to attend a case management conference, an additional case management or final case management conference, or fails to obey a case management order, the magistrate may give such orders as are just, including but not limited to the following—
(a) in the case of the accused, issue a warrant of his arrest; or
(b) in the case of the accused's attorney or the prosecutor, issue a warrant of arrest the execution of which shall be suspended pending the attorney or the prosecutor showing good cause why it should not be executed.
(2) The court shall set a date on which the attorney or the prosecutor shall show cause why the warrant of arrest may not be executed.
1. Where an accused pleads guilty to a charge, the magistrate shall call for a brief summary of the facts constituting the essential elements of the offence charged.
2. (1) Upon being satisfied that such facts constitute the essential elements of the offence charged, the magistrate shall explain the elements to the accused and ask him if he agrees with the summary.
(2) The magistrate shall record the reply and note, in particular, anything that the accused says that is inconsistent with a plea of guilty.
(3) If the accused agrees with the summary of facts and says nothing that is inconsistent with a plea of guilty, the magistrate shall put to the accused every element constituting the offence and ask the accused whether he admits all the elements of the offence put to him.
(4) In cases where there is a statutory defence such defence shall be brought to the attention of the accused and he shall be asked to admit its non availability to him in the particular case.
3. When the magistrate is satisfied that the accused has pleaded unequivocally to the offence, he may proceed to convict and after mitigation, sentence him.
ORDER 53
PROCURING EVIDENCE FOR TRIAL
A. Securing Attendance of Witnesses
1. (1) Any party desiring the attendance of any person to give evidence at a trial may, as of right, issue from the office of the clerk of the court one or more subpoenas for that purpose.
(2) Each subpoena shall contain the names of not more than four persons and the service upon any of the four named persons shall be effected by any member of a law enforcement agency under the instructions of the Director of Public Prosecutions.
(3) Service of a subpoena shall be effected in the manner prescribed under these Rules for service of process, and the process for subpoenaing such witnesses shall be, as nearly as may be, in accordance with Form 24 set out in Schedule 1.
(4) If any witness has in his possession or control any deed, instrument, writing or thing which the party requiring his attendance desires to be produced in evidence, the subpoena shall specify such document or thing and require him to produce it to the magistrate at the trial.
2. If the subpoena is not sued out by the Government, a sum sufficient to cover the expenses of serving the subpoena shall be lodged with the clerk of the court by the person suing out the subpoena.
3. (1) Every witness duly subpoenaed or warned to attend and give evidence at any criminal trial shall be bound to attend and to remain in attendance throughout the trial unless excused by the court.
(2) If any person who has been served with a subpoena under this Order fails, without lawful excuse, to attend at the time and place mentioned in the subpoena, a magistrate may issue a warrant for the arrest of that person.
(3) The person arrested under subrule (2) shall be liable to be dealt with in the same manner as he might have been dealt with if he had failed to attend without lawful excuse when served with a subpoena to attend a like court in the area where he resides or is present for the time being.
(4) The return showing that service of the subpoena has been duly effected, together with a certificate under the hand of the clerk of the court that the person whose attendance was required by the subpoena failed to attend when called upon, and has established no lawful excuse for the non-attendance, shall be deemed sufficient proof of the non-attendance for the purpose of dealing with the said person under subrule (2) except that, in the case of a warning through a Chief or Headman, the court shall satisfy itself that the person concerned was duly warned.
B. Evidence on Affidavit
4. (1) The witnesses at the trial of any action shall be examined viva voce but a magistrate may at any time, for sufficient reason, order that all or any of the evidence to be adduced at any trial be given on affidavit, or that the affidavit of any witness be read at the hearing on such terms and conditions as he may deem necessary.
(2) Notwithstanding subrule (1), where it appears to the magistrate that any party reasonably requires the attendance of a witness for cross-examination and such witness can be produced, the evidence of such witness shall not be given on affidavit.
C. Evidence on Commission
5. (1) A magistrate may, on application on notice either made at a case management conference or during trial, for good cause shown, in any case where it appears that the witness cannot be procured without any amount of delay, expense or inconvenience—
(a) issue an order to any magistrate or where the witness is outside Botswana, to any person authorized by such court to take evidence on commission within the local limits of whose jurisdiction such witness resides;
(b) require such witness to give evidence by video conferencing.
(2) The order in terms of subrule (1) (a) shall be as near as possible to Form 48 set out in Schedule 1.
6. Where the evidence of any person is to be taken on commission by any commissioner within Botswana, such person may be subpoenaed to appear before such commissioner to give evidence as if at the trial.
7. Unless the magistrate ordering the commission directs such examination to be by interrogatories and cross-interrogatories, the evidence of any witness to be examined before a commissioner in terms of an order granted under rule 4 shall be adduced upon oral examination in the presence of the parties, their attorney, and the witness concerned shall be subject to cross-examination and re-examination.
8. A commissioner shall not decide upon the admissibility of evidence tendered but shall note any objections made and such objections shall be decided by the magistrate hearing the case.
9. (1) Evidence taken on commission shall be recorded in such manner as evidence is recorded when taken before a magistrate in court and the transcript of any shorthand record or record taken by electronic means, duly certified by the person transcribing the same and by the commissioner shall constitute the record of the examination.
(2) Notwithstanding subrule (1), evidence tendered before the commissioner may be taken down verbatim.
10. The commissioner shall return the record of the evidence to the Clerk of the court with a certificate to the effect that it is the record of the evidence given before him and the record and certificate shall become part of the record in the action.
11. Rules 4 to 10 shall be subject to any ruling or order as the magistrate may deem fit to make.
D. General
12. The court may at any stage—
(a) subpoena any person as a witness;
(b) examine any person in attendance though not subpoenaed as a witness;
(c) recall and re-examine any person already examined; or
(d) subpoena and examine or recall and re-examine any person if his evidence appears essential for the purpose of arriving at a just decision of the case.
13. (1) Whenever any person appears in court in obedience to a subpoena, a warning or by virtue of a warrant, or being present and being verbally required by the court to give evidence—
(a) refuses to be sworn or affirmed;
(b) having been sworn or affirmed, refuses to answer such questions as are put to him; or
(c) refuses or fails to produce any document or thing which he is required to produce, without offering any just excuse for such refusal or failure, the court may adjourn the proceedings for any period not exceeding eight days, and may, in the meantime, by warrant commit the person so refusing or failing to a prison, unless he sooner consents to do what is required of him.
(2) If a person under subrule (1), upon being brought up at the adjourned hearing refuses or fails to do what is so required of him again, the court may, if it sees fit, adjourn the proceedings again and commit him for the same period, and repeat this process until the person consents to do what is required of him.
(3) Nothing contained in this rule shall, in the meantime, prevent the court from giving judgment in any case or otherwise disposing of the same according to any other sufficient evidence taken.
(4) A person shall not be bound to produce any document or thing not specified or otherwise sufficiently described in the subpoena unless he actually has it in court.
14. (1) Whenever any person is bound by subpoena to give evidence or is likely to give material evidence before any court in respect of any offence, any magistrate may, upon information in writing and on oath that such person is about to abscond or has absconded, issue a warrant for the arrest of such person.
(2) If such person is arrested, any magistrate, upon being satisfied that the ends of justice would otherwise be defeated, may commit him to a prison until the time at which he is required to give evidence.
(3) Any person arrested under subrule (1) shall be entitled, on demand, to receive a copy of the information upon which the warrant for his arrest was issued.
15. Section 66 of the Criminal Procedure and Evidence Act shall apply with the necessary modifications in connection with any person subpoenaed or warned to attend any trial as a witness.
16. (1) When the attendance of any person confined in any prison in Botswana is required in any court presiding over a criminal case, the court before which such prisoner is required to attend may, before or during the sittings or sessions of the court at which the attendance of such person is required, make an order upon the officer in charge of the prison or other person having the custody of such prisoner to deliver such prisoner to the person named in such order to receive him.
(2) The person so named in the order shall, at the time prescribed in the order, convey such prisoner to the place at which he is required to attend, to receive and obey such further order as to the said court seems fit.
(3) The magistrate may at any time order that the evidence of a witness from prison be given by video conferencing or any other electronic means.
(4) Whenever the attendance of any person confined in a prison is required as a witness on behalf of a private prosecutor or an accused person, other than an accused person to whose defence the evidence of such witness is deemed material and who has no sufficient means to make the deposit, there shall be deposited with the officer in charge of a prison or other officer having the custody and control of the person so confined such sum as may be necessary to cover—
(a) the expenses to be occasioned by the person so confined and his necessary escort to and from the court; and
(b) his maintenance during such period that the person so confined and his escort are likely, by reason of the attendance, to be detained outside the prison.
(5) A person shall not be required or bound to obey any such subpoena unless such a sum has previously been deposited.
(6) The sum referred to in subsection (4) shall be determined in accordance with a scale prescribed by the Minister.
(7) Notwithstanding subrule (4), the deposit payable to the officer in charge of a prison shall not be required whenever the attendance of any person confined in a prison is required on behalf of the Government.
E. Witnesses Allowance
17. Any person who has attended any criminal proceedings as a witness for the Government shall be entitled to such allowance as provided under the Tariff of Allowances (Witnesses in Criminal Cases) Regulations.
1. At the commencement of trial, the magistrate shall explain the trial procedure and the purpose of cross-examination, which shall be recorded.
2. (1) Subject to subrule (2), the court may allow opening statements by the prosecution and the defence.
(2) The prosecution shall present its statement first, followed by the defence which may preserve its opening statement until the end of the prosecution case.
(3) Notwithstanding subrule (1) and (2), both parties may waive the making of opening statements.
3. The prosecution shall then examine its witnesses and tender in any documentary or any other evidence which may be admissible.
4. At the end of each witness' evidence, the defence may cross-examine the witness for the prosecution.
5. The prosecution may, at the end of such cross-examination, re-examine the witness on issues raised in cross-examination.
6. (1) At the close of the prosecution case, the magistrate may invite the defence to make a submission of no case to answer.
(2) If the court considers that there is no evidence that the accused committed the offence charged or any other offence for which he might be convicted, it may return a verdict of not guilty.
7. (1) If the magistrate rules that the accused person has a case to answer, he shall ask him or his legal representative, if any, whether he intends to adduce evidence in his defence.
(2) Where there is more than one accused person, the magistrate shall ask each of them or their legal representative, if any, whether they intend to adduce evidence in their defence.
(3) If any of the accused persons answers in the affirmative, he or his legal representative may address the court for the purpose of opening evidence intended to be adduced for his defence, but without comment.
(4) The accused person or his legal representative shall examine his witnesses and tender any documentary or other any evidence which may be admissible.
8. After all of the evidence has been presented, the parties may make final submissions and the prosecution shall have the right to open, the defence to follow and the prosecution to close.
9. (1) After the evidence has been concluded and the legal representative or the accused, as the case may be, has addressed the court or stated that they do not wish to do so, the magistrate may give judgment or may postpone the same to a future date.
(2) A judgment shall be written by or under the direction of the magistrate in the language of the court and shall contain the following—
(a) the charge and the particulars of the offence;
(b) plea;
(c) summary of the evidence;
(d) points for determination of the issues;
(e) the decision and reasons for the decision; and
(f) the date of delivery and signature of the magistrate.
(3) The judgment shall be delivered in open court.
10. The rules applicable to a trial shall apply with the necessary modifications to a trial within a trial.
1. (1) A witness is hostile if he is not desirous of telling the truth at the instance of the party who called him.
(2) Any party may, in criminal proceedings, impeach his own witness or support the credibility of the other party's witness.
2. (1) When a witness gives evidence which is materially different from a previous statement made by him, the party calling the witness may make a verbal application to the magistrate to declare the witness hostile.
(2) The magistrate shall ask such witness whether he did or did not previously make a statement with which his evidence in the said proceedings is inconsistent.
(3) If the witness admits to having made the statement, the magistrate shall declare him a hostile witness.
(4) Where the witness has been declared hostile, the magistrate shall direct the party applying to cross-examine the witness to clear up the discrepancies between his previous statement and his evidence in the proceedings.
3. (1) If the witness denies having made the previous statement, the party so alleging shall prove the existence of such statement.
(2) If the court is satisfied that the witness made such previous statement it may declare him hostile and the same procedure as in rule 2 shall apply.
(3) Where the court rules that the witness did not make the previous statement, it shall dismiss the application and the witness shall proceed to give evidence in the normal way.
(4) Where the witness declared hostile has been cross-examined by the party calling him, the other party may also cross-examine him and he may be re-examined by the party who called him.
(5) The court may, at the time of judgment, in assessing the evidence of a witness who has been declared hostile, reject or accept in part or in whole such evidence.
ORDER 56
PRODUCTION AND PROOF OF PREVIOUS CONVICTIONS
1. If the prosecution alleges that the accused has previous convictions, it shall file the criminal record of the accused person in court at any time after conviction but before sentencing.
2. Where the criminal record of the accused person is filed in court under rule 1, the court shall ask him whether he admits or denies the previous convictions set out in the criminal record.
3. The accused may admit orally all or any of the previous convictions set out in the criminal record.
4. If he admits the previous convictions, the court shall sentence him accordingly.
5. If he does not admit to any or all of the previous convictions, the prosecution may lead evidence to prove such previous convictions.
6. Where the prosecution leads evidence to prove the previous convictions, the rules of procuring evidence in a trial shall apply with the necessary modifications.
ORDER 57
ADDRESS BY THE PARTIES ON SENTENCING
1. The accused person shall be entitled to address the court in mitigation of sentence.
2. The prosecution may address the court on aggravating factors before sentence.
3. Where the prosecution disputes factors raised by the accused in mitigation, he may adduce evidence to rebut such mitigating factors.
4. The court may allow the victim to address the court before sentence in an effort to assist the court in coming to a just sentence.
5. Where a person has been convicted of an offence which has caused personal injury to some other person or damages to or loss of property belonging to some other person, the court trying the case may, after recording the conviction, invite such victim or other person to address the court on—
(a) compensation in terms of section 316 of the Criminal Procedure and Evidence Act;
(b) how he has been affected by the offence committed by the accused; or
(c) any mitigating or aggravating factors.
6. The court may before sentencing, seek the expert opinion of any professional in determining the appropriate sentence.
1. The provisions of these Rules shall apply to Private Prosecutions with the necessary modifications.
SCHEDULE 1
FORMS
The Forms contained in this Schedule may, where applicable, be used with such variations as the circumstances may require; but non-compliance with these specimen Forms shall not in itself be a ground of exception or defence.
Form No.
1. General Headings
2. General Conclusions
3. General Form of Notice of Application
4. Power of Attorney to Sue or Defend
5. Edictal Citation
6. Substituted Service
7. Summons Commencing Action
8. Return of Service
9. Affidavit of Service
10. Notice of Consent to Judgment
11. Request for Default Judgment
12. Offer of Settlement
13. Notice of Withdrawal
14. Notice of Application for Summary Judgment
15. Affidavit in Support of Application for Summary Judgment
16. Notice to Produce for Inspection
17. Notice to Produce Things in General for Inspection
18. Notice to Produce at Trial
19. Notice to Produce Things in General at Trial
20. Certificate of Record
21. Order Obtained Ex Parte
22. Order for Arrest, Interdict or Attachment
23. Security on Arrest or Interdict Ex Parte
24. Subpoena
25. Warrant for Fine or Arrest of a Witness in Default
26. Warrant for the Apprehension of a Witness in Default
27. Warrant of Execution Against Property
28. Security Bond on Attachment
29. Security by the Judgment Creditor
30. Notice of Attachment in Execution
31. Security for Stay of Execution
32. Security when Execution is Allowed Pending Appeal
33. Warrant of Ejectment or Upon Decree for Delivery up for Possession of Premises
34. Warrant upon Decree for the Delivery up of Goods
35. Interpleader Summons (General)
36. Interpleader Summons (Messenger)
37. Summons for Civil Imprisonment
38. Warrant for Civil Imprisonment
39. Release of the Judgment Debtor
40. Affidavit in Support of Application for a Garnishee Order
41. Garnishee Order nisi
42. Garnishee Order
43. Garnishee Order for the Attachment of Emoluments
44. Notice of Appeal
45. Request for Trial with Assessors
46. Summons to Assessor
47. Notice of Abandonment of Part of Claim
48. Commission de bene esse
49. Request to Inspect Record
50. Oath of Office of Shorthand-Writer
51. Initial Case Management Order
52. Final Case Management Order
Form 1
GENERAL HEADINGS
1.
In Actions
In the Magistrate's Court for the ................................................ District of Botswana
held at ..................................................................................................................
Case No. ................................... of 20.............
In the matter between
............................................................................................................... Plaintiff
and
.............................................................................................................. Defendant.
2.
In Applications
In the Magistrate's Court for the ................................................ District of Botswana
held at ..................................................................................................................
Case No. ................................... of 20.............
In the matter between
.............................................................................................................. Applicant
and
............................................................................................................ Respondent.
3.
In Garnishee Matters
In the Magistrate's Court for the ................................................ District of Botswana
held at ..................................................................................................................
Case No. ................................... of 20.............
In the matter between
.............................................................................................................. Creditor
and
.................................................................................................... Judgment Debtor
.............................................................................................................. Garnishee.
Form 2
GENERAL CONCLUSIONS
1.
Process for Service
DATED at .................................. this .......... day of............................. 20 ..............
....................................
Clerk of the Court.
2.
Process for Execution
And return to this Court what you have done by virtue hereof, for which this shall be your warrant.
DATED at .................................. this .......... day of............................. 20 ..............
By order of the Court
.......................................
Clerk of the Court.
To: (Attorney for) Execution Creditor
3.
Notice
DATED at .................................. this .......... day of............................. 20 ..............
Attorney for the .......................................................
To: Clerk of the Court
And To .............................................. (Other Party)
4.
Security Bond
In witness the said .............................................. and ..........................................
appended their signatures at ...........................................
on ............................... this .................. day ..................................... 20 ...........
As witnesses:
1.
...........................................................................................................................
Signature and address
2.
...........................................................................................................................
Signature and address
5.
Agreement
Thus done and signed at ................................this ....... day of ................ 20 ..............
Plaintiff or Plaintiff's Attorney.
...............................................
Defendant or Defendant's Attorney.
As witnesses:
1.
...........................................................................................................................
Signature and address
2.
...........................................................................................................................
Signature and address
6
Affidavit
Thus done and sworn to before me at ................................................... this ...........
day of ............................. 20 ................... at ..................hours.
.........................................................................
Justice of the Peace (or Commissioner of Oaths).
Form 3
GENERAL FORM OF NOTICE OF APPLICATION
In the Magistrate's Court for the ...................................................... District of Botswana
held at ......................................................................................................................
Case No. ................................... of 20.............
In the matter between
.................................................................................................................... Applicant
and
................................................................................................................... Respondent.
TAKE NOTICE that application will be made to this Court on the .......................... day of
.......................................................... 20 ....................
at .................................................for an order that (state shortly terms of order applied for)
(a) ...............................................................................................................
(b) ...............................................................................................................
(c) ...............................................................................................................
Form 4
POWER OF ATTORNEY TO SUE OR DEFEND
(Order 4 rule 2 (1))
In the Magistrate's Court for the ................................. District of the Republic of Botswana
I /We, the undersigned, ............................................. do hereby nominate, constitute and
appoint ................................................................................. (Attorney(s) with power of
substitution to be my/our lawful attorney (s) and agent (s) in my/our name(s), place and stead to institute/defend legal proceedings against/instituted by ..............................................
according to law and to proceed to the determination thereof hereby promising to ratify any legal steps that the attorney(s) and agent(s) may take by virtue of these presents.
Given under .............................. hand at ...................... this day of ............ 20 ...........
...................................
Signature
As Witnesses:
1 .............................................
Signature and Names
2 ............................................
Signature and Names
Form 5
EDICTAL CITATION
(Order 7 rule 4 (2))
In the Magistrate's Court for the ................................. District of the Republic of Botswana
held at ......................................................................................................................
Case No. ................................... of 20.............
In the matter between
.................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To: ....................................................................................................... (sex)
........................ (occupation) formally residing at ................................... but whose whereabouts are unknown.
TAKE NOTICE that by summons issued out of this court you have been called upon to give notice, within ........................ days after publication hereof, to the clerk of the court and to .............................. (the plaintiff's attorneys) of your intention to defend (if any) in an action wherein ...................................................................................................... claims:
(a) ...............................................................................................................
(b) ...............................................................................................................
(c) ...............................................................................................................
TAKE NOTICE FURTHER that if you fail to give such notice, judgment may be granted against you without further reference to you.
DATED at .................................. this .......... day of............................. 20 ..............
......................................
Clerk of the Court.
Plaintiff's Attorney
Address for service:
................................................................................................................................
..................................................................................................................................
Form 6
SUBSTITUTED SERVICE
(Order 8 rule 4)
In the Magistrate's Court for the ................................. District of the Republic of Botswana
held at ......................................................................................................................
Case No. ................................... of 20.............
In the matter between
.................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To .............................................................. , of ........................................................
TAKE NOTICE that a summons has been issued against you in this Court by
........................................................ , of ....................................................... (address)
for the following claims:
(a) ...............................................................................................................
(b) ...............................................................................................................
(c) ...............................................................................................................
and that an order has been made that the publication of notice of such summons shall be deemed to be good and sufficient service of the summons on you. You are required to enteran appearance to the summons on or before the .......... day of ........................... 20 .............., and, if you do not do so, judgment may be given against you in your absence.
TAKE NOTICE FURTHER that if you fail to give such notice, judgment may be granted against you without further reference to you.
DATED at .................................. this .......... day of............................. 20 ..............
......................................
Clerk of the Court.
Plaintiff's Attorney
Address for service:
................................................................................................................................
................................................................................................................................
Form 7
SUMMONS COMMENCING ACTION
(Order 9 rule 1 (2) )
In the Magistrate's Court for the ................................. District of the Republic of Botswana
held at .........................................................
Case No. ................................... of 20.............
In the matter between
.................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To .......................................................................................................................... of
.................................................................................................................................
YOU ARE HEREBY SUMMONED that you do within ........................... days after the service of this Summons upon you ENTER or cause to be entered with Clerk of the Court and also the plaintiff or his attorney at the address specified herein an APPEARANCE TO ANSWER
THE claim of ........................................................ (name) an adult ......................... (sex)
of ................................................................ (address) employed as/carrying on business
as............................................................................and residing/place of business in the
........................................................................................... District, the plaintiff herein for the relief set out in the particulars endorsed hereunder or annexed hereto.
(1) PARTICULARS:—
................................................................................................................................
................................................................................................................................
................................................................................................................................
................................................................................................................................
................................................................................................................................
................................................................................................................................
................................................................................................................................
................................................................................................................................
................................................................................................................................
................................................................................................................................
................................................................................................................................
Despite demand, defendant refuses, neglects or fails to pay the sum of P .........................
WHEREFORE plaintiff prays for judgment against defendant in the said sum with costs.
Costs if the action is undefended, will be as follows:—
Summons
Judgment
Attorneys charges
P
P
Court fees
P
Messenger's fees
P
P
Totals
P
P
Total
P
AND TAKE NOTICE THAT in default of your entering an appearance to defend you will be held to have admitted the said claim, and the plaintiff may proceed therein and judgment may be given against you in your absence; but that, on payment of the said claim and costs to the plaintiff within the said time, judgment will not be given against you herein; and that if before the expiration of the said time, you so pay or lodge with clerk of the aforesaid court a consent to judgment, you will save judgment charges.
(Endorsement on Back of Summons, or on the copy)
2.
Consent to Judgment
I admit that I am liable to the plaintiff as claimed in this summons or; in the amount of
P......................................... and costs to date and I consent to judgment accordingly.
DATED at .................................. this .......... day of............................. 20 ..............
.............................
Defendant.
NOTE: If the consent is not given on the original summons or on the copy served it must be witnessed by two witnesses whose addresses must be given.
3.
Form of Appearance to Defend
To: The Clerk of the Court.
Kindly take notice that the defendant hereby enters an appearance to defend the action.
DATED at .................................. this .......... day of............................. 20 ..............
..................................................................
Defendant or Defendant's Attorney.
Address for service/physical address: ....................................................................
Postal Address: ...................................................................................................
NOTE: The original notice of appearance to defend must be filed of record with the clerk of the court and a copy thereof served on the plaintiff.
4.
Conclusion To Endorsement of Claim
..................................................
Plaintiff or Plaintiff's Attorney.
Address ................................................................................................................
Postal Address .....................................................................................................
Form 8
RETURN OF SERVICE
(Order 2 rule 3 (3) )
In the Magistrate's Court for the.......................................District of the Republic of Botswana
held at ..............................................................................
Case No. ................................... of 20.............
In the matter between
..................................................................................................................... Plaintiff
and
.........................................................................................................................Defendant
1.
I hereby certify that I have served a copy of summons/warrant of execution against property/summons for civil imprisonment in the above matter on the ........................... day of........20.......upon the within named by.............................(manner of service)
2.
Upon service the defendant
(a)
Consented to judgment
(b)
Entered form of appearance to defend
(c)
Paid in part
P............................................
(d)
Paid in full settlement
P............................................
3.
The attorneys are requested to forward
(a)
Messenger's fees
P........... kilometers at ...........
(b)
Service of Magistrates' Court process
P............................................
(c)
Registration of Magistrates' Court process
P............................................
(d)
Making return of service
P............................................
P............................................
Remarks: (including where service has not been effected) .............................................
.................................................................................................................................
.................................................................................................................................
.........................................................
Messenger of the Court
cc: Clerk of the Court
and to..............................................................................................................
Form 9
AFFIDAVIT OF SERVICE
(Order 2 rule 3(4))
In the Magistrate's Court for the.................................District of the Republic of Botswana
held at ...........
Case No. ................................... of 20.............
In the matter between
.................................................................................................................... Plaintiff
and
.................................................................................................................. Defendant
I the undersigned
............................................................................................... do hereby make oath and
say that—
1.
I am an adult female/male of full legal capacity resident at ..............................
2.
On the ..........day of ............................................................20.........., I served a
copy of .............................. in this matter on ....................in the following manner:—
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
3.
I did explain to him/her the nature and exigency thereof.
............................
Deponent
(General Conclusion)
Form 10
NOTICE OF CONSENT TO JUDGMENT
(Order 3 rule 4(2))
In the Magistrate's Court for the .................................... District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
.................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
You are hereby informed that the defendant has today consented to judgment herein for
P........................................ with costs of P ................................
...................................... (stamp)
Clerk of the Court.
To: the Plaintiff's (Attorney).
Form 11
REQUEST FOR DEFAULT JUDGMENT
(Order 12 rule 3(2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
.................................................................................................................... Plaintiff
and
................................................................................................................. Defendant
The plaintiff prays that—
(1) the defendant having been duly served;
(2) the time for appearance by the defendant having expired; and
(3) the defendant not having entered an appearance to defend;
judgment may be entered against the defendant, as claimed in the Summons, together
with P ............... for interest at ..........................per cent from the date of Summons.
DATED at .................................. this .......... day of............................. 20 ..............
................................................................
Plaintiff or Plaintiff's Attorney.
Form 12
OFFER OF SETTLEMENT
(Order 14 rule 2 (2) )
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
.................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
Kindly take notice that the defendant has paid into court the sum of P...............as an offer of full in (full/part) settlement.
....................................................
Defendant/Defendants Attorney.
To: the Plaintiff's (attorney) ..........................................................................................
and To: Clerk of the Court............................................................................................
Form 13
NOTICE OF WITHDRAWAL
(Order 26 rule 1(2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
.................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
TAKE NOTICE that the above-named plaintiff hereby withdraws the above action and consents to pay the defendant's agreed or taxed costs.
DATED at .................................. this .......... day of............................. 20 ..............
To: Defendant/Defendant's Attorney .................................................................................
And To: The Clerk of the Court. ......................................................................................
Form 14
NOTICE OF APPLICATION FOR SUMMARY JUDGMENT
(Order 16 rule 1 (2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
.................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
TAKE NOTICE that application will be made to this Court on the .............................. day
of. .............................. at...............am/pm for leave to enter judgment
against you in this action for P.............................. and costs.
AND FURTHER TAKE NOTICE that the affidavit of ............................................. of which a copy is served herewith, will then be used in support of such application, and that you may reply thereto by affidavit.
Form 15
AFFIDAVIT IN SUPPORT OF APPLICATION FOR SUMMARY JUDGMENT
(Order 16 rule 1( 4))
I, ....................................................................................................................
(Address) .......................................................................................................
(Occupation) ........................................................................................... make oath and say as follows—
1. I am the plaintiff in this action (or, the facts herein stated are within my own knowledge, and I am duly authorized to make this affidavit by virtue of my position as .....................................
2. The defendant is indebted to me/the plaintiff in the sum of P ..................... on the grounds stated in the Summons.
3. I verily believe that the defendant does not have a bona fide defence to this action and that appearance has been entered solely for purposes of delay.
Form 16
NOTICE TO PRODUCE FOR INSPECTION
(Order 19 rule 3 (2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
.................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
TAKE NOTICE that the .................................... requires you to produce for his inspection at your office on the ........................... day of..... ..............20....................at ............... am/pm, the books/documents/plans/diagrams/models/photographs in your possession or under your control in terms of rule 3 (2) of Order 19.
(General Conclusion)
Note: This form shall apply with the necessary modifications to medical reports under Order 20 rule 5 (b).
Form 17
NOTICE TO PRODUCE THINGS IN GENERAL FOR INSPECTION
(Order 21 rule 1(2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
TAKE NOTICE that the ..................... requires you to produce for his inspection at your office on the ..................... day of ......................20 .....................at ..................... am/pm, the following ..................... (things in general) in terms of rule 1 (2) of Order 21.
(General Conclusion)
Form 18
NOTICE TO PRODUCE AT TRIAL
(Order 19 rule 5 (2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
TAKE NOTICE that you are hereby required to produce and show to the Court on the trial of this action, all books/documents plans/diagrams/models/photographs in your possession or control in terms of Order 19 rule 5 (2).
(General Conclusion)
Form 19
NOTICE TO PRODUCE THINGS IN GENERAL AT TRIAL
(Order 21 rule 3 (2) )
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
TAKE NOTICE that you are hereby required to produce and show to the Court on the trial of this action, the following .................................................................................... (things in general) in your possession or control, in terms of Order 21 rule 3 (2).
(General Conclusion)
Form 20
CERTIFICATE OF RECORD
(Order 28 rule 7(3) )
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
I, ........................................................ (Court Reporter) do hereby certify and declare that the foregoing notes are a true record of the proceedings in this action and of all evidence received by the said Court.
DATED at .................................. this .......... day of............................. 20 ..............
.....................................
Court Reporter.
Form 21
ORDER OBTAINED EX PARTE
(Order 29 rule 2(4))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Applicant
and
.................................................................................................................... Respondent
IT IS ORDERED THAT:
A rule nisi be and is hereby granted calling upon ........................ (respondent) to show cause, if any, to this Court on the........................... day of ...............20 ..................at ................ am/pm, or so soon thereafter as he can be heard, to show cause why the following orders cannot be made final ........................... (set out the terms of the order).
By Order of the Court.
...................................
Clerk of the Court.
Form 22
ORDER FOR ARREST, INTERDICT OR ATTACHMENT
(Order 30 rule 2 (2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Applicant
and
.................................................................................................................... Respondent
IT IS ORDERED THAT:
1. The Messenger of the Court arrest/ interdict/attach the ............................................. (respondent) and safely keep him/it and have him/it brought before the Court at............... am/pm on the ...............day of ...............20 ..............., then and there to show cause why he should not be interdicted pending judgment/institution of action or he/it detained to abide the judgment of this court in an action for a sum of P............... to be instituted against him by the applicant.
2. That the said action be instituted within 48 hours from the date of this order.
By Order of the Court.
...............................................
Clerk of the Court.
Form 23
SECURITY ON ARREST OR INTERDICT ex parte
(Order 30 rule 5 (4))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Applicant
and
.................................................................................................................... Respondent
WHEREAS .................................................................................................. (applicant)
of .......................................................................... has applied for the issue of a warrant
of arrest against ...................................................................................., (respondent) of
............................................................................................................................... (or,
an arrest or interdict against the goods of .................................................... (respondent)
at ......................................... ) and the Court has fixed the security to be given by the said
................................................................................................................ (respondent).
at the sum of P.....................
NOW THEREFORE the said ........................................................................ (applicant)
undertakes and binds himself to satisfy any lawful claim by the said ................. (respondent)
against him the said .................................................................................... (applicant), for
damages which the said ............................................................... (respondent) may suffer
by reason of the said arrest (or interdict) in case the said arrest (or interdict) be hereafter set aside.
AND the said .................................................................................... (surety) hereby
undertakes and binds himself as surety for and co-principal debtor with the said....................
...................................(applicant) in a sum not exceeding the said sum of P.....................
for the due fulfillment by the said ............................................................ (applicant) of the
obligation undertaken by him by these presents.
(General Conclusion)
Form 24
SUBPOENA
(Order 31 rule 1(4) and Order 54 rule 1 (3))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To:
1. ..............................................................................., of..........................................
2. ..............................................................................., of..........................................
3. ..............................................................................., of..........................................
4. ..............................................................................., of..........................................
You are hereby required to appear in person before this Court at ................................................................
on the ................................ day of ................................20 ................at ................am/pm
and so from day to day until this action is tried, to give evidence in this action on behalf of the
....................................................................................................... (plaintiff/Defendant)
(Where documents are required to be produced, add:)
(1) and to bring with you and then produce to the Court the several documents specified in the list hereunder—
(a) .................................................................................................................
(b) .................................................................................................................
(c) .................................................................................................................
(2) List of documents to be produced
Date
Description
Original or Copy
(General Conclusion)
Note: This form shall also apply to subpoena under Order 54 rule 1 (3) with the necessary modifications.
Form 25
WARRANT FOR FINE OR ARREST OF A WITNESS IN DEFAULT
(Order 31 rule 4 (2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To the Messenger of the Court and to the Officer in Charge, Prisons of the above District.
WHEREAS ............................................. of ........................................... has been duly subpoenaed to give evidence (or, to produce certain books, papers or documents, as the case may be) in the above matter before this Court at ...............................on the ........................ day of........................ 20........ and has defaulted.
AND WHEREAS this Court has imposed upon the said ........................ for his said default a fine of P ........................ and for non-payment has committed him to the prison of the above district
for a period of ..............................................................................................................
This is therefore to authorize and require you the said Messenger of this Court to take the body of the said ......................... and, unless he shall pay to you the said sum of P......................... to deliver him to the Officer in Charge of the said prisons together with this warrant there to
be safely kept until he shall have paid the said sum of P.........................or until the expiration of the
said period of.........................from the day on which the said ......................... shall be received into or retained in the said prison by virtue of this warrant whichever of the two shall
first happen or until the said ......................... shall be otherwise legally discharged.
And this is to command you the said Officer in Charge of the said prison to receive and safely keep the said.........................as aforesaid.
(General Conclusions)
Form 26
WARRANT FOR THE APPREHENSION OF A WITNESS IN DEFAULT
(Order 31 rule 4 (3))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To the Messenger of the Court.
WHEREAS ............................of ............................has been duly subpoenaed to give
evidence (or, to produce certain books, papers or documents, as the case may be) in the
above matter before this Court at .................................... on the.................. day of
....................................20...................................., and has made default.
This is therefore to authorize and require you to take the body of the said ...............
............................................................................................................ and have
him before the Court at .........................on the....................... day of ..................20.......,
then and there to give his evidence and to be otherwise dealt with according to law.
(General Conclusion)
Form 27
WARRANT OF EXECUTION AGAINST PROPERTY
(Order 33 rule 1 (2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To the Messenger of the Court.
AMOUNT TO BE LEVIED
(with costs of execution).
WHEREAS in this action the said ............................................................... (plaintiff)
on the........................day of .................... 20 ................., by the judgment of the Court
recovered against the said ....................................................................... (respondent)
of the several sums set out in the margin hereof mounting in all to the sum of
Judgment Debt Costs
P ................................................
Cost of issuing Warrant
P ................................................
Costs of Appeal:
P ................................................
TOTAL
P ................................................
This is therefore to authorize and require you that of the property of the said .....................
........................................................................ (defendant) you cause to be levied and
raised the said sum of P ............ together with your costs of this execution; and pay to the
said ..........................................(plaintiff) the said sum of P.....................
NOTE
(1)
If the judgment debtor pays the amounts specified in the margin hereof with messenger's charges of P................... within half an hour after the entry of the messenger he will not be required to pay any further costs of execution.
(2)
This execution may be paid out before sale subject to the payment of the messenger's fees and charges of execution, which may be required to be taxed.
(3)
The only immovable property upon which this warrant may be executed is: ...............
................... (set out its situation and nature sufficient to enable it to be identified).
(4)
(In case of re-issue the fact and date of re-issue and any increase or reduction in the amounts to be levied shown on the face hereof shall be set out in a note endorsed hereon and signed by the judgment creditor 's attorney and by the clerk of the court. No alterations, except in consequence of amendment duly authorized by the Clerk of the Court, shall, after first issue, be made on the face hereof.)
(General Conclusion)
Form 28
SECURITY BOND ON ATTACHMENT
(Order 33 rule 8)
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
........................................................................................................Judgment Creditor
and
......................................................................................................... Judgment Debtor
WHEREAS the said ......................................................................... (judgment creditor)
on the day of ....................................... 20 ....................by judgment of this Court recovered
against the said ............................................................(judgment debtor) the sum of
P ................. together with the sum of P .................for costs; and whereas by virtue of a
certain warrant under the hand of the clerk of the said court bearing date, ................. day of
................. 20...., directed to Messenger of the said Court the said Messenger has seized
and laid under attachment in respect of the said judgment and in respect to the execution thereof the undermentioned articles, viz:—
(a) ................................................................................................................
(b) ................................................................................................................
(c) ................................................................................................................
NOW THEREFORE the said ............................................................. (judgment debtor)
and .................................................................... of ....................................... as surety
and co-principal debtor for him and they hereby severally undertake and bind themselves jointly and severally to the said Messenger that the said goods shall not be made away with or disposed of but the same shall remain in possession of the said Judgment Debtor under effect of the said attachment and shall be produced to the Messenger of the said Court on the
...........................................day of. .................20 ................. (the day appointed for sale)
or any other day when the same maybe required in order to be sold in execution of the said judgment and expenses if the same shall not be sooner satisfied to the said Judgment Creditor.; otherwise the said surety and co-principal debtor hereby undertakes and binds himself to pay and satisfy the said judgment costs and expenses for and on behalf of the said Judgment Debtor.
(General Conclusion)
Form 29
SECURITY BY THE JUDGMENT CREDITOR
(Order 33 rule 10 (2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
........................................................................................................Judgment Creditor
and
......................................................................................................... Judgment Debtor
WHEREAS the said (judgment Creditor) on the ................... day of ..................... 20 ..........
recovered judgment in this Court against the said defendant for the sum of P .....................
together with the sum of P ..................... for costs:
AND WHEREAS under the said judgment execution has been issued and property has been attached:
NOW THEREFORE, the said judgment creditor undertake and bind himself to the said execution debtor that if the execution and attachment be hereafter set aside, he will satisfy any lawful claim against him by the said execution debtor for damages suffered by the said execution debtor by reason of the said execution and attachment.
AND ............................................................... of ............................................. hereby
undertake and bind himself as surety and co-principal debtor in a sum not exceeding
P ................ for the due fulfilment by the said judgment creditor of the obligation undertaken by these presents.
(General Conclusion)
Form 30
NOTICE OF ATTACHMENT IN EXECUTION
(Order 33 rule 29( 2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
........................................................................................................Judgment Creditor
and
......................................................................................................... Judgment Debtor
To .................................................................................. , Judgment Debtor.
TAKE NOTICE that I have this day seized and laid under judicial attachment the articles comprised in the above inventory in pursuance of a warrant to me directed under the hand of the Clerk of the Court for the District of ....................................................................
whereby I am required to cause to be levied and raised of your property in this District the
sum of P ................ and P ........................ costs recovered against you by the judgment of the said Court in this action and also for my charges in and about the said warrant.
DATED at .................................. this .......... day of............................. 20 ..............
..................................................
Messenger of the Court.
Form 31
SECURITY FOR STAY OF EXECUTION
(Order 33 rule 51)
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
..................................................................................................... Judgment Creditor
and
...................................................................................................... Judgment Debtor
WHEREAS the said ......................................................................... (Judgment Creditor)
by judgment of this Court on the .................................... day of ..................20 .............
recovered against the said ...................................................... (Judgment Debtor) the
sum of P .......................... together with the sum of P ................................for costs;
AND WHEREAS the said Judgment Debtor has applied to the Court for a stay of execution pending appeal (or, pending the hearing of an application to review and reverse the said judgment) and the Court has directed that execution be stayed accordingly subject to the said
Judgment Debtor giving security within ...................................................... days;
NOW THEREFORE the said Judgment Debtor and ...................................................... of
............................................................................................................ (address)
as surety and co-principal debtor for him hereby undertake and bind themselves jointly and severally to satisfy the said judgment and any further liability which may arise by way of damages or otherwise by reason for such suspension; provided that such judgment may not be reversed or varied on such appeal (or review) and
further severally ....................................................................................................
........................................................................ (here insert any further terms required).
(General Conclusion)
Form 32
SECURITY WHEN EXECUTION IS ALLOWED PENDING APPEAL
(Order 33 rule 52 (2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
..................................................................................................... Judgment Creditor
and
...................................................................................................... Judgment Debtor
WHEREAS the said ......................................................................... (Judgment Creditor)
on the ....................... day of....................... recovered by judgment of this Court against the
said Judgment Debtor the sum of P............... together with the sum of P............... for costs;
AND WHEREAS the said Court has directed the said judgment notwithstanding that the said Judgment Debtor has noted an appeal against the same to be carried into execution upon security being given for restitution;
NOW THEREFORE the said Judgment Creditor and .............................................
of........... as surety and co-principal debtor for him the said Judgment Creditor hereby undertake and bind themselves jointly and severally to refund and make restitution of
the above several sums of P...................and P............., should the judgment of the said Court be reversed and further terms required.
(General conclusion)
Form 33
WARRANT OF EJECTMENT OR UPON DECREE FOR DELIVERY UP OF POSSESSION OF PREMISES
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To the Messenger of the Court.
WHEREAS in this action the said plaintiff on the ....................day of .................. 20 .........
obtained judgment for the ejectment of the said defendant from the premises known as
....................................................................................................................................
THIS IS to authorize and require you to put the said plaintiff into possession of the same by removing there from the said defendant for which this shall be your warrant.
(General conclusion)
Form 34
WARRANT UPON DECREE FOR THE DELIVERY UP OF GOODS
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To the Messenger of the Court.
WHEREAS in this action the Court did decree that the said defendant should deliver to the
said plaintiff a certain .................................................. (describe the thing to be delivered):
THIS IS to authorize and require you to take the said ....................... (describe the thing)
and place the said plaintiff in possession thereof for which this shall be your warrant, and return to this Court what you have done by virtue thereof.
(General conclusion)
Form 35
INTERPLEADER SUMMONS (GENERAL)
(Order 34 rule 1(1))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
WHEREAS ......................................................... of ....................................................
has interpleaded in this Court as to the subject-matter following:—
..................................................................................................... (state subject-matter)
which is adversely claimed by ...................................... of ...................................... and
of ......................................................... hereinafter called the claimants; Summon the said
claimants that they severally appear before this Court held at......................................
on ................... the ................... day of ...................20..................., at ...................am/pm,
and that they do then severally state the nature and particulars of their several claims and whether they will maintain or relinquish the same.
(General Conclusion)
Form 36
INTERPLEADER SUMMONS (MESSENGER)
(Order 34 rule 2(1))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To ................................................................................................... (Execution Creditor)
and ............................................................................................................. (Claimant)
You are hereby summoned to appear before this Court on the ................. day of .................
20 ........, at ........ am/pm, to have it determined and declared whether certain movable
property, to wit ................ attached on the ................ day of ................ 20 ........
by the Messenger of this Court by virtue of a warrant of execution issued by this Court on the
....................... day of ............................... 20 ........ in the action in which you, the said
Execution Creditor obtained judgment for the sum of P ........................ against .................
(the Execution Debtor), and which said property is claimed by you, the said, ........................
........................................ (Claimant) as being your property, is or is not your property.
DATED at ................................ this ........................day of ................ 20........
........................................
Clerk of the Court.
Form 37
SUMMONS FOR CIVIL IMPRISONMENT
(Order 35 rule 1(2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To ................................................................. of .........................................................
(describe the defendant as in the former process).
You are hereby summoned to appear before this Court to be held at ................................
on the ................ day of ........................... next at ................ am/pm to show cause why a
decree of civil imprisonment should not be made against you at the suit of ...........................
................................................................ of ................................................................
(describe the plaintiff as in the former process) in respect of the non-payment of the sum of
P ................................ (insert the joint amount of debt and costs) recovered against you by
the said judgment creditor by a judgment of the said Court dated the ........................... day of
................................................. 20 ................
(General Conclusion)
Form 38
WARRANT FOR CIVIL IMPRISONMENT
(Order 35 rule 1(8))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
......................................................................................................... Judgment Creditor
and
.............................................................................................................. Judgment Debtor
To the Messenger of the Court
And To the Officer-in-Charge of Prison at ................................................
These are to command you the said Messenger of the Court to take .........................
(describe as in the last preceding form) and deliver him to the Officer-in-Charge of the Prison at aforesaid together with this warrant there to be safely kept until he shall have paid to
................................................................ of ................................................................
describe the plaintiff as in the summons aforesaid) the sum of P ............... (part of the sum of
P ...............) which the said Judgment Creditor recovered for his debt and costs by judgment
of this Court bearing date the ..............................day of ............................20 ...............
or until the expiration of ............... from the day on which the said Judgment Creditor shall
be received into or retained in the said prison by virtue of this warrant whichever of the two shall first happen or until the said Judgment Debtor shall be otherwise legally discharged.
(General Conclusion)
NOTE: No alterations shall after first issue be made on the face hereof but any suspension, variation, increase or reduction in the sum payable by the debtor, and the fact and date of any re-issue shall be shown by endorsement hereon signed by the judgment creditor's attorney and by the clerk of the court.
Form 39
RELEASE OF THE JUDGMENT DEBTOR
(Order 35 rule 6(2))
In the Magistrate's Court for the ...............................District of the Republic of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
......................................................................................................... Judgment Creditor
and
.............................................................................................................. Judgment Debtor
WHEREAS the judgment debtor was, pursuant to the order of the court dated ............ day
of ........................20 ............ personally attached and imprisoned pending the payment of a
debt in the sum of P............
AND WHEREAS the said judgment debtor has paid the sum of P ............ in part/full
settlement of the debt on the ........................day of ........................20 ............
NOW THEREFORE the judgment creditor requires the release of the said judgment debtor from prison.
DATED at ................................ this ........................day of ................ 20........
............................................................
Judgment Creditor/Attorney.
Consent to the release by the Clerk of the Court
...................................................................................................................................
...................................................................................................................................
.............................................
Clerk of the Court.
Form 40
AFFIDAVIT IN SUPPORT OF APPLICATION FOR A GARNISHEE ORDER
(Order 36 rule 1 (2))
In the Magistrate's Court for the .................................................... District of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Creditor
and
............................................................................................................ Judgment Debtor
...................................................................................................................... Garnishee.
I, ...................................................... of .................................................... duly sworn,
State:
1. I am the above-named Judgment Creditor (or, I am duly authorized by the above- named Judgment Creditor to act for him in this matter).
2. The Judgment Creditor has obtained judgment against the Judgment Debtor in this Court
(or, in the Magistrate's Court for the District of ................................. a certified copy of
which judgment is hereto annexed marked "A") on the ............................day of ..............
20 .............., in an action numbered .............................. for the sum of P.............. and costs
amounting to P .........................
3. The said judgment is still unsatisfied to the amount of P................
4. The Garnishee resides (or, carries on business as a .......................................... or, is
employed as .........................................................) at..............within the jurisdiction
of this Court and is indebted to the Judgment Debtor in the sum of P.............. (or in an
amount to the Petitioner unknown) at present or in future owing or accruing to the
judgment debtor for .................................................... (set out the cause of the debt).
5. The Judgment Debtor will, after the execution of the order herein sought, have a
sufficient income, i.e. P ..............per month, arising from (set out the source of such income)
............................ to maintain himself and those dependent upon him, i.e. (set out the numbers and relationship to the judgment Debtor of his dependants).
(General Conclusion)
Form 41
GARNISHEE ORDER NISI
(Order 36 rule 2 (4))
In the Magistrate's Court for the .................................................... District of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Creditor
and
............................................................................................................ Judgment Debtor
...................................................................................................................... Garnishee.
WHEREAS it has been made to appear to the above-named Court that a debt is at present or in the future owing or accruing to the judgment debtor by or from the Garnishee:
IT IS ORDERED THAT:
1. The said debt to an amount not exceeding P ................ be attached to answer a judgment
recovered against the Judgment Debtor by the Judgment Creditor in the ...................
Court on the...................day of...................20 ................... for the sum of P ..............
on which judgment the sum of P ...................remains due and unpaid.
2. The Garnishee do pay to the judgment Creditor or his attorney the said sum of P .............
together with P ............... (the costs hereof) but not exceeding in all the sum of P ..........
(out of his said debt) or, failing such payment, that the Garnishee appear before this
Court on the .................. day of ...................20 ...................at ...................am/pm then
and there to show cause why he should not pay the same.
DATED at ................................ this ........................day of ................ 20........
By Order of the Court
...........................................
Clerk of the Court.
Attorney for Judgment Creditor.
TO THE ABOVE-NAMED JUDGMENT DEBTOR
If the judgment against you has been satisfied or is, for any reason, no longer operative against you, you should appear at the Court and prove the facts; but you cannot be heard on any other point.
Form 42
GARNISHEE ORDER
(Order 36 rule 5)
In the Magistrate's Court for the .................................................... District of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Creditor
and
............................................................................................................ Judgment Debtor
...................................................................................................................... Garnishee.
WHEREAS it has been made to appear to the above-named Court that a debt is at present or in the future owing or accruing to the judgment debtor by or from the Garnishee:
IT IS ORDERED THAT:
1. The said debt to an amount not exceeding P ............. be attached to answer a judgment
recovered against the Judgment Debtor by the Judgment Creditor in the ......................
Court on the ....................day of ..................... 20 ........ for the sum of P......................
on which judgment the sum of P ...................... remains due and unpaid.
2. The Garnishee do pay to the Judgment Creditor or his attorney the said sum of P.........
together with P ...................... (the costs hereof) but not exceeding in all the sum of
P ...................... (out of his said debt) or, failing such payment, execution may issue for the same.
DATED at ................................ this ........................day of ................ 20........
By Order of the Court
...................................
Clerk of the Court.
Attorney for Judgment Creditor.
Form 43
GARNISHEE ORDER FOR THE ATTACHMENT OF EMOLUMENTS
(Order 36 rule 2(4))
In the Magistrate's Court for the .................................................... District of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Creditor
and
............................................................................................................ Judgment Debtor
...................................................................................................................... Garnishee.
WHEREAS it has been made to appear to the above-named Court that emoluments are at present or in future owing or accruing to the judgment Debtor by or from the Garnishee and that after satisfaction of this order sufficient means will be left to the Judgment Debtor to maintain himself and those dependent on him:
IT IS ORDERED THAT:
(1) The said emoluments be attached;
(2) The Garnishee pay to the judgment Creditor or his attorney on the ...................... day of
each and every month/week hereafter the sum of P ........... until a sufficient amount has
been paid to satisfy a judgment recovered against the Judgment Debtor by the Judgment
Creditor in the magistrate's court for the district of ...............................on the ........... day
of ................................. 20 ........... (on which Judgment the sum of P............ remains
unpaid) and the costs of attachment amounting to P ...........
If the Garnishee fails to pay the judgment Creditor or his attorney as aforesaid, he shall
appear before this court on the ................................. day of ......................20 ...........
at ...................... to show cause why he should not pay the same.
DATED at ................................ this ........................day of ................ 20........
By Order of the Court
...........................................
Clerk of the Court.
Attorney for Judgment Creditor.
TO THE ABOVE-NAMED JUDGMENT DEBTORS:
If the judgment against you has been satisfied or is, for any reason, no longer operative against you or the attachment will not leave you sufficient to enable you to maintain yourself and those dependent on you, you should appear at the court and prove the facts; but you cannot be heard on any other point.
Form 44
NOTICE OF APPEAL
(Order 38 rule 1(2))
In the Magistrate's Court for the .................................................... District of Botswana
Case No. ................................... of 20.............
In the matter between
.................................................................................................................. Appellant
and
.................................................................................................................. Respondent
TAKE NOTICE that the appellant herein appeals against the decision of the ....................
........................................................................................................ magistrate court.
AND TAKE NOTICE FURTHER that the grounds of this appeal are
..................................................................................................................................
..................................................................................................................................
..................................................................................................................................
..................................................................................................................................
DATED at ........................................this ....................day of ....................,20....................
........................................
Appellant/Attorney
Address for service.
To: (1) ........................................................respondent of ................................
(2) Registrar of the High Court
(3) And to the Clerk of the Court (Magistrate)
Form 45
REQUEST FOR TRIAL WITH ASSESSORS
(Order 39 rule 2(2))
In the Magistrate's Court for the .................................................... District of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
The plaintiff (or defendant) hereby applies to have the above action tried with assessors.
Either
(1) The defendant (or plaintiff) consents to such application and to the appointment of the
following assessor: ................................ (name of assessor) of ..............................,
................................................................................................
Plaintiff or Plaintiff's Attorney/Defendant or Defendant's Attorney.
Or
(2) The defendant (or plaintiff) consents to such application, but the parties are unable to agree upon the names of assessors;
WHEREFORE the parties pray the Court to appoint an assessor (or two assessors), excluding
the following assessors:— .................................................................... (Set out the names of those assessors whom one or other of the parties objects to.)
...................................................
Plaintiff or Plaintiff's Attorney
and
.....................................................
Defendant or Defendant's Attorney.
Or
(3) The defendant (or plaintiff) objects to such application:
WHEREFORE the plaintiff (or defendant) has set down this application for hearing on the
..................................... day of ................................20 ................at ................ am/pm.
................................................
Plaintiff (or Defendant) or
Plaintiff's (or Defendant's) Attorney.
To the Clerk of the Court
And to the Defendant (or Plaintiff).
ORDER
Application granted/refused this ....................................day of ...........................20 .........
Assessors appointed: ............................................................... (names of the assessors)
By Order of the Court
....................................
Clerk of the Court.
Form 46
SUMMONS TO ASSESSOR
(Order 39 rule 1(5))
In the Magistrate's Court for the .................................................... District of Botswana
held at ......................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
You are hereby summoned to attend and serve as an Assessor in this Court on the ...........
day of ................................. 20 ..........., at ................. am/pm to assist the Court in the
above action in accordance with the provisions of section 20 of the Magistrates' Courts Act.
.......................................
Clerk of the Court.
Response by the Assessor
I ...................................................... have the honour to serve as an assessor in this matter,
.................
Assessor
To Plaintiff/Attorney.
And to Defendant/Attorney
Form 47
NOTICE OF ABANDONMENT OF PART OF CLAIM
(Order 9 rule 3 (4))
In the Magistrate's Court for the ...............................................District of Botswana held
at ...............................................................................................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
TAKE NOTICE that the plaintiff (or defendant) hereby abandons the undermentioned claim (or objection, exception, defence, as the case may be) set up by him in his summons (or plea, reply, etc., as the case may be).
Particulars (of the abandoned claim):—
.........................................
Plaintiff/Attorney
or
Defendant /Attorney
Form 48
COMMISSION DE BENE ESSE
(Order 54 rule 5(2))
In the Magistrate's Court for the ...............................................................District of the Republic of Botswana held at ......................................................................................
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
To ....................................................................................... (names of the commissioner)
of ........................................................................................................... (address)
Greeting,
Under and by virtue of the authority vested in me by section 210 of the Criminal Procedure and Evidence Act) (Cap. 08:02), I do hereby commit to you full power and authority as a
Commissioner of this Court to examine G ..............H ..............of ..............(and such
other witness as either of the parties to this matter may desire to call) and to take the evidence on oath of the said witness(es) in the above suit now pending in this Court.
GIVEN under my hand at ...................this ..............day of .......................... 20..............
.....................
Magistrate
Form 49
REQUEST TO INSPECT RECORD
(Order 48 rule 3(4))
Magistrate's Court
District of ..................................................................................................... 20 ..............
I ................................................(names) of .............................. (address) apply
to inspect Record No ............................... of 20 .............. (or, if the applicant does not know the Registered No) the
record of ........................................................................................................ (Plaintiff)
and ............................................................................................................ (Defendant.)
I am entitled to inspect the record by virtue
of ...................................................................................................... (state reasons)
Search to begin with the month of ...................................................... 20 ..........
....................
(Applicant)
If the applicant is a party to the case, or the attorney of such a party, his capacity should be stated after his signature.
Form 50
OATH OF OFFICE OF SHORTHAND-WRITER
(Order 28 rule 5 (2) and Order 48 rule 2 (2))
I, ......................................................................................................................., do
swear/solemnly and sincerely affirm and declare that I will faithfully, accurately and to the best of my ability take down in shorthand/cause to be recorded by electronic means, as directed by the judicial officer, the proceedings in any case in which I may be employed as an officer of the Court and that I will similarly when required so to do transcribe the same or any other notes taken by any officer of the court in shorthand / recorded by electronic means."
SWORN before me at ........................ this ................. day of ................. 20 .................
..............................
Judicial Officer.
Form 51
INITIAL CASE MANAGEMENT ORDER
(Order 45 rule 5(1))
In the Magistrate's Court for the ...............................................District of Botswana
held at
Case No. ................................... of 20.............
In the matter between
....................................................................................................................... Plaintiff
and
.................................................................................................................... Defendant
ORDER
BEFORE His/Her Worship ...................... at ......................on the ...................... day
of .............................................................................................. 20 ......................
A. HAVING CONSIDERED the agreed case management report dated the .........................
submitted by the parties under Order 45 rule 3 (2)
and/or
B. HAVING CONSIDERED the separate case management proposals of the plaintiff, dated the ...................................... day of ..................................... 20..................., and the defendant dated the ................... day of ...................20.................... ,
respectively submitted under Order 45 rule 3 (3)
and/or
C. Following the initial case management conference: Initial Case Management Conference
held on the; .................................................... and
attended by ....................................................
UPON HEARING .......................... (parties) and having read the documents filed of record.
IT IS ORDERED THAT:
1. Joinder (Order 45 rule 4 (1) (a))
1.1 There is no need for joining any other party in the cause;
1.2 The following party/ies must be joined in the cause:
1.2.1 .....................................................................................................................
1.2.2 .....................................................................................................................
2. Pleadings (Order 45 rule 4 (1) (b) and rule 4 (4) (d))
2.1 The pleadings are closed.
2.2 The following further pleadings/amendments to pleadings or filing of better statements or further particulars must be filed on or before the following dates:
2.2.1 .....................................................................................................................
2.2.2 The pleadings must be closed by ......................................................................
3. Interlocutory motions (Order 45 rule 4 (1) (c)); objections on points of law (Order 45 rule 4 (1) (h)) and applications for directions (Order 45 rule 4 (1) (i))
3.1 No interlocutory motions are required.
3.2 The following interlocutory motions are required and must be prosecuted in the following manner:
3.2.1 .....................................................................................................................
4. Admissions of facts and other evidence (Order 45 rule 4 (1) (e))
4.1 By consent of the parties, the following facts and other evidence are admitted:
4.1.1 .....................................................................................................................
5. Discovery, inspection, production of documents (Order 45 rule 4 (1) (f))
5.1 Discovery, inspection and production of documents shall be conducted under the provisions of Order 19.
5.2 Notwithstanding the provisions of Order 19 discovery, inspection and production shall be conducted in the following manner:
5.2.1 .....................................................................................................................
6. Admissions under Order 23 (Order 45 rule 4 (1) (f))
6.1 In addition to the admissions by consent recorded in paragraph 4, the following facts are admitted by virtue of Order 23 rule 1;
6.2 .....................................................................................................................
7. Inspection, examinations and expert testimony under Order 19, 20 and 22 (Order 45 rule 4 (1) (f)
7.1 Inspection, examinations and expert testimony shall be conducted under the provisions of Orders 19, 20 and 22.
7.2 Notwithstanding the provisions of Orders 19, 20 and 22, inspection, examination and expert testimony shall be conducted in the following manner:
7.2.1 .....................................................................................................................
8. Examination of witnesses under Order 20 (Order 45 rule 4 (1) (f))
8.1 Witnesses shall be examined as provided in Order 20.
8.2 Notwithstanding the provisions of Order 20, examination of witnesses shall be conducted in the following manner:
8.2.1 .....................................................................................................................
9. Expert witnesses (Order 45 rule 4 (1) (g))
9.1. There shall be no expert opinion evidence.
9.2 The provisions of Orders 20 and 22 shall be followed in the production of expert opinion evidence.
9.3 Notwithstanding the provisions of Orders 20 and 22, the following expert witnesses:
..................................................................................................................
shall with a view to narrowing the field of dispute, participate in the following manner:
9.3.1 .....................................................................................................................
.....................................................................................................................
10. Hearing (Order 45 rule 4 (1) (j) and rule 4 (1) (m))
10.1 All issues shall be determined in one hearing.
10.2 There shall be separate hearings for the following:
10.2.1 .....................................................................................................................
10.3 The following hearings shall be held on the following dates:
10.3.1 .....................................................................................................................
11. Settlement talks or possible mediation (Order 45 rule 4 (1) (l))
11.1 .....................................................................................................................
12. Additional case management conferences (Order 45 rule 4 (1) (k) and rule 6 (1))
12.1 The initial case management conference is deemed to be the final pre-trial conference.
12.2 An additional case management conference shall be held:
12.2.1 .....................................................................................................................
12.2.2 and attended by ...........................................................................................
12.2.3 for the purpose of ..........................................................................................
13. Further procedures to facilitate just and speedy disposal (Order 45 rule 4 (1) (m))
13.1.1 .....................................................................................................................
Form 52
FINAL CASE MANAGEMENT ORDER
Agenda / Minute
(Order 45 rule 9 (1) and Order 52 rule 4(2))
In the Magistrate's Court for the .................................................... District of Botswana
held at .......................................................................................................................
Case No...............................of 20 .....................
In the matter of
....................................................................................................................... Plaintiff
and
................................................................................................................... Defendant
FINAL CASE MANAGEMENT ORDER
BEFORE His/Her Worship ........................................ at ........................... on the day
of ................................................................................. 20 ...........................
A. HAVING CONSIDERED the agreed proposed final case management order dated the
................................................................... day of ...........................20 ...........
submitted by the parties under Order 45 rule 8 (1);
and
B. Following the final case management conference (under Orders 45 and 52):
held on the ............................................................................................................ and
attended by ..................................................................................................................
IT IS ORDERED THAT:
1. Issues to be resolved during the trial (Order 24 rule 1 read with Order 45 rule 10) and Order 52 rule 4 (1).
1.1 The proposed case management order is made final.
1.2 The proposed case management order is made final, subject to the following amendments and variations:
1.2.1 .......................................................................................................................
(General Conclusions)
SCHEDULE 2
TABLES
Table A— Costs
Table B— Tariff of Fees of Messengers or Other Persons not being Parties effecting Service.
Table C— Fees to Assessors.
Table D— Court Fees.
TABLE A
COSTS
(Order 40 rule 5 and 6)
PART I
GENERAL PROVISIONS
1. (1) Except as provided in subparagraphs (2), (3) and (4), costs in defended actions shall be taxed on Scale A.
(2) When the amount in dispute exceeds P100 but does not exceed P1,000, costs shall, except as provided in subparagraph (3), be taxed on Scale B.
(3) When the court has made an order in terms of Order 40, rule 8, whereby costs are awarded on a higher scale, costs shall be taxed on a scale mentioned in such order.
(4) When the amount in dispute exceeds P1,000, costs shall be taxed on Scale C.
(5) Where the amount in dispute is not apparent on the face of the proceedings, costs shall be computed at the lower rate; but the court may, on the application of any party, assess the amount in dispute.
2. (1) For the purpose of computing costs, the expressions—
"amount in dispute" shall mean, where costs are awarded to the plaintiff, the amount or value of the judgment;
"amount or value of the judgment" shall mean, where more than one claim is involved in the action, the total of the amounts involved in the judgment;
"amount in dispute" shall mean, where costs are awarded to the defendant, the amount or value of the claim, and;
"amount or value of the claim" shall mean, where more than one claim is involved in the action, the total of the amounts of all the claims.
(2) The amount or value of the judgment or claim shall be inclusive of interest but exclusive of costs.
(3) In the event of a matter being settled at any time the costs shall be taxed on the scale laid down in the agreement of the settlement.
(4) In the event of there being no agreement as to the scale of fees applicable, any party shall have the right within 14 days of the date of the settlement to apply to a magistrate who shall determine the scale of fees to be applied at the taxation.
3. Costs taxable in terms of Order 40, rule 20, shall be deemed to have been awarded under a judgment for the amount paid into court or a judgment in terms of the settlement, as the case may be.
4. Claims for ejectment shall be computed at two months' rent of the premises.
5. The rate at which costs are computed shall not be increased by reason of any claim for confirmation of any interdict or other interlocutory order.
6. Fees to counsel shall be allowable on taxation only in cases falling within the provisions of paragraph 1 (2), (3) or (4) and may not be so allowed unless payment of them is vouched by the signature of counsel.
7. Where the amount allowed for an item is specified, the amount is inclusive of all necessary copies, attendances and services (other than services through the messenger) in connection therewith.
8. Where the amount allowed for an item is not stated—
(a) the drawing of documents shall be allowed at P25 for each folio;
(b) copies for filing and service shall also be allowed; and
(c) service shall be allowed at P15 for each necessary service.
9. (1) Where any document appears to the court to be unnecessarily long-winded, the clerk of the court may disallow all or any part of the charge.
(2) Where printed forms of documents to be copied are available, the charges for copying shall be limited to the necessary matters inserted in such printed documents.
10. A folio is 1500 written or printed words or figures and four figures shall be reckoned as one word.
11. (1) Unless otherwise provided, a charge for perusing shall be allowed at P5 per folio in respect of any document or pleading necessarily perused.
(2) Unless otherwise provided, where a charge is allowed for copying, it shall be P2 per folio.
12. (1) Where the judgment debt is payable by instalments in terms of the judgment, the fees shall be taxable immediately the judgment is given, but shall be recoverable only on the payment of each instalment.
(2) A fee of 5 per cent for collection shall be allowed for each instalment.
13. The clerk of the court shall on taxation disallow any charge unnecessarily incurred.
14. Where the fee under any item is calculated on an hourly basis, the total number of hours on any one day shall be added together and the fee calculated on such total.
PART II
UNDEFENDED ACTIONS
Item 1.
—
Summons (inclusive of demand): If the claim or claims or the value of the claim or claims in the aggregate do not exceed
P100 ..................................................................
P10
Item 2.
—
Judgment: If the claim or claims or the value of the claim or claims in the aggregate do not exceed P100 ........................
P5
Note: Where the claim or the value of the claim in issue exceeds P100 the fees under items 1 and 2 shall be increased by P1 for every P100 or part of P100 exceeding the first P100 up to a maximum of P1,000 irrespective of the amount of the actual claim.
Item 3.
—
Notice in terms of Order 12, rule 4 (2) ..................................
P5
Item 4.
—
Notice in terms of Order 9, rule 6 ........................................
P5
Item 5.
—
Affidavit ............................................................................
per folio
P5
Item 6.
Attending court at the request of the magistrate when claim referred to court for judgment .........................................
As allowed under item 26 of the scale for defended actions.
Note: The amount of fees allowable under items 3, 4, 5 and 6 shall without taxation be included in the amount of the costs for which judgment is entered.
PART III
DEFENDED ACTIONS
TARIFF OF FEES OF ATTORNEYS
In connection with a bill of costs for services rendered by an attorney, such an attorney shall be entitled to charge, in accordance with the hourly rates at section A of this tariff, for time taken, where there is no fixed rate for such a service.
A— HOURLY RATES (PARTY AND PARTY SCALE)
Pupil attorney 00 per hour
0— 2 years experience
00— P400 per hour
2-5 years experience
P400— P500 per hour
5—10 years experience
P500— P700 per hour
10— 15 years experience
P700— P850 per hour
Over 15 years experience
P850— P1,000 per hour
TAKING INSTRUCTIONS
A—TAKING INSTRUCTIONS
1.
To institute or defend any proceeding
Time taken by attorney
2.
For advice on evidence or on commission
Time taken by attorney
3.
For case on opinion, or for advocate's guidance in preparing pleadings, including exceptions
Time taken by attorney
4.
For statement of witness
Time taken by attorney
5.
To set down cause, issue subpoena or any other simple instructions
Time taken by attorney
6.
To draft a petition or affidavit
Time taken by attorney
7.
To note an appeal
Time taken by attorney
8.
To prosecute or defend an appeal (exclusive of the perusal of the record)
Time taken by attorney
B— ATTENDANCE AND PERUSAL
1.
(a)
Any summons, petition, affidavit, pleading, advocate's advice and drafts, report, and important notice or document, per folio for the first 10 folios
P10
and thereafter per folio
P5
(up to a maximum of P2 for all folios)
P5
(b)
Any letter, record, stock sheets in voluntary surrenders, judgments or any other material documents not elsewhere specified, per folio for the first 10 folios
P5
and thereafter per folio
P2.50
(up to a maximum of P25,000 for all folios)
2.
Attending the receipt of and considering any plan or exhibit or other material document in respect of which the basis of remuneration set out in item 1 of this section cannot be applied— per folio for the first 10 folios
P2.50
and thereafter per folio
P5
(up to a maximum of P25,000 for all folios)
P2.50
3.
Making searches in offices of record (per half hour or part thereof )
Time taken by attorney
4.
Sorting out, arranging and paginating papers for pleading, advice on evidence or brief on trial or appeal (per half hour)
Time taken by attorney
5.
Attending to give or take discovery (per half hour)
Time taken by attorney
6.
Attending on client to obtain particulars of his claim and to settle same
Time taken by attorney
7.
Attending on bespeak and thereafter procure transcription of shorthand note, etc
Time taken by attorney
8.
Other attendances including telephone calls (per half hour)
Time taken by attorney
C— ATTENDANCE (FORMAL)
1.
To serve or deliver any necessary document or letter or dispatch any telegram
P15
2.
To sue out any process or file any document
P15
3.
To set down causes for trial
P7,50
4.
To search for any return
P7,50
5.
On receipt, perusing and considering of notice of intention to defend - per folio
P7,50
6.
On advocate, e.g. with folio
Time taken by attorney
7.
On signature of powers of attorney to sue or defend
P15
8.
Other formal attendances, including telephone calls
Time taken by attorney
D— DRAFTING AND DRAWING
1.
Drafting instructions for case on opinion, for advocates' guidance in preparing pleadings (including further particulars and requests for same) including exceptions
Time taken by attorney
2.
Drafting instructions to advocate for advice on evidence, for brief on trial or on commission
Time taken by attorney
3.
Drafting instructions to advocate for argument in respect of all classes of pleading, provided that a fee for drafting instructions on motion, petition, exception or appeal, shall only be allowed at the discretion of the taxing master
Time taken by attorney
4.
Drafting statements of witnesses
Time taken by attorney
5.
Drawing subpoenas, powers of attorney to sue or defend and formal notices (per folio)
P25
6.
Drafting a petition, affidavit, any notice, except formal notice, summons, further particulars requested and furnished for trial, writs of execution, arrest or attachment and any other important document not otherwise provided for
Time taken by attorney
7.
Letter or telegram (per folio)
and thereafter per folio
P25
P25
Copy to keep per folio
P2
8.
Drawing index to brief
P12.50
9.
Drawing short brief
Time taken by attorney
NOTE 1: In computing the number of folios of any document referred to in paragraphs 1,2, 3, 4 and 6 of this section, the taxing master shall deduct, but treat as annexures where relevant, any portions consisting of quotationsfrom other documents and papers.
NOTE 2: The charges allowed in this section for drafting and drawing do not, except in the case of items 5, 7, 9, and 10, include making the first fair copy which shall be charged for under Item 1 of section F of this tariff.
10
. Research, preparation and drafting of heads of argument
Time taken by attorney
E— APPEARANCE, CONFERENCE AND INSPECTION
1. Attendance by attorney when an advocate is employed in court or before a judge, a commissioner, or referee or at an inspection directed by the judge:
To note judgment only
otherwise, per hour
Time taken by attorney
2. Appearance by attorney without an advocate before a judge on request by the judge, or before a commissioner or referee, per hour
Time taken by attorney
3. (1) Appearance by an attorney as counsel in court, or before a judge, an arbitrator, commissioner or referee or at an inspection directed by the judge:
Maximum fees
As for advocates
Provided that an attorney shall not be allowed fees both as an attorney and as counsel in respect of the same service.
(2) Any conference or consultation with advocate with or without witnesses and on pleadings including exceptions and particulars to pleadings, applications, petitions, affidavits, testimony and on any other matter which the taxing officer may consider necessary:
Per half hour
Time taken by attorney
4. (1) Any conference or consultation with client, witness or opposite party, and any other conference or consultation which the taxing officer may consider necessary:
Per half hour
Time taken by attorney
(2) Attending conference in terms of Order 45:
Per half hour
Time taken by attorney
5. Any inspection in situ or otherwise per hour
Time taken by attorney
The above rates of remuneration shall not be applicable in respect of time spent in travelling, but the taxing master shall in respect of time necessarily so spent, allow additional remuneration not exceeding P11.50 per diem, and shall also allow the reasonable costs of necessary conveyance.
6. Evidence: Such just and reasonable charges and expenses as may, in the opinion of the taxing master, have been properly incurred in procuring the evidence and attendance of witnesses whose fees have been allowed on taxation provided that the qualifying expenses of a witness shall not be allowed without an order of court or the consent of all interested parties.
Time spent travelling and waiting is to be at the particular attorney's hourly rate, but no travel expenses allowable special trip within the place where the court is sitting.
F— MISCELLANEOUS
1. Briefing and copying; for making copies for the court, for counsel or for attorney, or for service or for any other necessary purpose, the charge shall be per folio
10 thebe
(including the first copy of any document drafted in respect of which a charge is recoverable under Items 2, 3, 4, 5, 7, and 9 of section D of this tariff ) and for further copies up to 200, per folio and for still further copies, per folio
P2
2. For making copies of the record in a civil appeal from the magistrates' court the charge shall be per folio of the first copy, and per folio of all other copies
P2
3. Drawing up insolvency schedules, including petition, affidavit and relative attendance ad jurat
Time taken by attorney
4. For giving a verbal or written opinion (as between attorney and client)
Time taken by attorney
5. General: Inclusive fee for consultations and discussions with client or advocate not otherwise provided or specially charged
Time taken by attorney
6. A folio shall contain 300 words or part thereof, four figures are to be counted as a word
G—BILL OF COSTS
In connection with a bill of costs for services rendered by an attorney, such attorney shall be entitled to charge:
1. For drawing the bill of costs, making the necessary copies and attending settlement, five per cent of the first P10,000 or a portion thereof, two and a half per cent of the second P10,000 or a portion thereof, and one per cent on the amount in excess of P200,000 of the amount of the attorney's fees, either as charged in the bill if not taxed, or as allowed on taxation.
2. And in addition thereto, if recourse is had to taxation, for arranging and attending taxation and obtaining consents to taxation, five per cent of the first P10,000 or portion thereof, and two and a half per cent of the second P10,000 or portion thereof, and one and a half per cent on the amount in excess of P200,000 of the fees allowed on taxation.
The fee under each item of this section shall be calculated on the same amount.
TABLE B
TARIFF OF FEES OF MESSENGERS OR OTHER PERSONS, NOT BEING PARTIES, EFFECTING SERVICE
For service or attempted service of any summons and for other process and endorsing the necessary return
P15
Whenever any document to be served with any process is mentioned in such process, no fee shall be charged for the service of such document; otherwise the fee of P5 may be allowed in respect of each separate document served, provided that no such fee for the service of a separate document shall be allowed in respect of the service of process in criminal cases.
ALLOWANCES
1. Travelling Allowance
(1) When a motor vehicle including a motorcycle or a motor scooter is used
The rates applicable to persons employed in the public service as authorized in General Orders
(2) When a public conveyance is used
The actual disbursement.
(3) When service is effected by means other than (1) to (2)
Rates applicable to persons employed in the public service as authorized in the General Orders.
Note: This allowance shall be payable only in cases where the duty in question is to be performed beyond a radius of one kilometer from the office of the messenger or the abode or office of the other person, not being a party to the action, effecting service:
Provided that if the office of the messenger or the abode or office of such other person is situated more than three kilometres from the Court the allowance shall be payable only where such duty is to be performed beyond a distance of one kilometre from the Court.
2. Subsistence Allowance
(1) Subsistence allowance shall be paid in addition to travelling allowance at the rate applicable to persons employed in the public service as authorized in the General Orders per day or part of a day.
(2) No subsistence allowance shall be allowed when service is effected within the limits of the township or village in which the courthouse is situated.
(3) A judicial officer may increase the subsistence allowance in any case in which he considers there are special circumstances to warrant such an increase.
Travelling allowance and subsistence allowance may be allowed for attempted service as well as for actual service. When two or more summonses or other process, whether at the instance of the same plaintiff or of different plaintiffs, have been, or, in the opinion of the taxing officer, should have been served on one and the same journey, the travelling allowance and subsistence allowance for performing the round of service shall be fairly and equitably apportioned among the several cases, regard being had to the distances at which the parties against whom such process is directed respectively, reside, but the fee for service shall be payable for every service made or attempted to be made.
3. (1) For taking inventory per folio or portion thereof
P5
(2) For each necessary copy thereof
P2.50
4. For drawing advertisement of sale of goods attached
P12.50
5. In respect of execution—
(a) when a writ is paid on presentation, one per cent on the amount of the writ, with a minimum fee of
P5;
(b) when a writ is withdrawn by the judgment creditor, or the judgment debtor's estate is placed under sequestration before any movable property has been attached, a fee of
P25;
(c) when a writ is withdrawn by the judgment creditor or the judgment debtor's estate is placed under sequestration after movable property has been attached, but before sale, two and a half per cent on the value of the movable property attached, but commission shall not in any case be calculated on an amount greater than that directed to be recovered;
(d) when a writ is paid by the judgment debtor to the messenger after movable property has been attached but before sale, three per cent on the amount so paid;
(e) after sale in execution—
(i) for the first P1,000 or less than P1,000 of the amour recovered, five per cent,
(ii) for every subsequent P1,000 or portion thereof, four per cent;
(f) commission shall not be allowed on the value of movable property attached, but subsequently claimed by a person other than the judgment debtor and released in consequence of such claim, unless such property has been attached on the express direction of the judgment creditor.
6. Keeping possession of property seized—
(a) for each custodian (not exceeding two in number) necessarily left in possession, per diem
P75
"possession" means the continuous and necessary presence on the premises and for the period in respect of which possession is charged for a custodian employed and paid by the messenger for the sole purpose of retaining possession;
(b) for removal and storage, the reasonable and necessary expenses of such removal and storage;
(c) for herding and preserving livestock, the necessary expenses of herding and preserving such stock;
(d) disbursement can only be allowed when actually and necessarily made, and on production of receipts therefor when obtainable;
(e) when no officer is left in possession and no security bond is taken, but the movable property attached remains under the supervision of the messenger, a reasonable fee not exceeding, per diem
P125
(f) a messenger may insure movable property attached if it is necessary and he is authorized in writing by the judgment creditor to do so, and for effecting such insurance he shall be allowed a fee of P25 in addition to the premium paid.
7. For effecting an arrest
P50
8. For conveying a defendant to prison from the place of arrest, per kilometre or fraction of a kilometre
P50
9. For bringing a defendant to Court from the place of custody, per day or fraction of a day
P50
10. For drawing and completing a bail bond, deed of security or indemnity bond
P12.50
11. For executing a writ of ejectment
P25
12. For executing a writ of attachment of immovable property or an attachment to found jurisdiction, including notices to the owner and the Registrar of Deeds and endorsing the necessary return
P25
13. Notice of attachment to a single lessee or occupier identical notices when there are several lessees or occupiers-for each after the first
P15
14. For executing a writ of attachment of pension, salary, wages, and in heritance or rights of a similar character, including notices to the judgment debtor, the Treasury, Executor, Master of the High Court, etc
P15
15. Notice to Registrar of Deeds withdrawing an attachment on immovable property
P15
16. For copies of writs and orders necessarily made
P2.50
17. The fees and charges for all work reasonably and necessarily done in the service or execution of process for which no provision is made in this tariff shall be assessed, and every question arising under or relative to such tariff shall be determined by the clerk of the court.
18. All disbursements actually made or liabilities incurred in the execution of process shall be subject to taxation by the clerk of the court and the production of receipts when obtainable.
19. No fee may be charged for the service of process in pauper cases, but the messenger shall be entitled to receive his out of pocket expenses.
20. The messenger's fees shall be added to the amount to be recovered under this tariff, and shall be chargeable against the judgment debtor.
TABLE C
FEES TO ASSESSORS
1. For every attendance when the case is wholly or partially heard, P20 for each hour or part of an hour of such attendance, but not to be less than P100 or more than P150 for every such attendance.
2. For every attendance when the case is not heard, but is postponed or settled, at the above rate, but the minimum to be P100.
3. Attendances to be reckoned from the hour for which the assessor is summoned to the hour at which judgment is given or reserved, or to the hour at which the assessor is expressly released by the court from further attendance, whichever shall be the earlier.
4. When the case is adjourned, postponed, or settled, attendances to be reckoned from the hour for which the assessor is summoned to the hour at which the case is adjourned, postponed or settled or to the hour at which the assessor is expressly released by the court from further attendance, whichever shall be the earlier.
5. The following rates shall apply to an assessor when travelling to and from the courthouse:
(1) When a motor vehicle including a motorcycle or a motor scooter is used:
The rates applicable to persons employed in the Public Service as authorized in General Orders.
(2) When a public conveyance is used: The actual disbursement.
(3) When service is effected by means other than (1) to (2):
Rates applicable to persons employed in the Public Service as authorized in the General Orders
Note: This allowance shall be payable only in cases where the duty in question is to be performed beyond a radius of one kilometer from the residence or office of the assessor.
TABLE D
COURT FEES
1.
(a)
On filing a writ of summons, originating motion, petition or application and other originating document whereby an action is instituted
P60
(b)
on every bill of costs to be taxed
P30
2.
On filing; in claims in which the value of the subject matter of the dispute is less than P100, five per cent of the value.
3.
On filing; in claims in which the value of the subject matter of the dispute cannot conveniently be ascertained
P20
4.
No fee shall be levied on the document whereby an action or appeal is instituted by a poor litigant.
5.
Request to inspect any record—
(a)
If the number of the record is given
P10
(b)
If the number of the record is not given for every month required to be searched
P15
6.
Request for a typed copy of a record or part thereof to be made by the clerk of the court—
(folio)
P5
7.
For examining and certifying a copy of a record, per folio
P5
8.
For every appeal from a judgment of a Customary Court
P5
9.
Request for a written judgment under Order 38, rule 1
P5
10.
For appeal from a judgment of a magistrate's court to the High Court
P20
11.
When an appellant requires the magistrate's court appealed from to supply typed copies of the record for the use of the High Court, he shall be entitled to the requisite number of copies for delivery to the Registrar of the High Court on payment of the following fees—
(a)
for the first four folios or part thereof
P5
(b)
for each subsequent folio of 100 words
P2.50
12.
If the appellant requires a copy or copies for his own use, for each copy supplied, one-quarter rate. If the respondent requires a copy or copies for his own use, for first copy, full rate, and for each subsequent copy, one-quarter rate.
13.
(1) A clerk of the court who has omitted to take any such fees shall be liable to pay and make good the amount thereof to the Accountant-General.
(2)
(a)
Where any dispute arises between the clerk of the court and any persons desiring to lodge any document as to whether the document is or is not sufficiently stamped, the question shall be referred to a judicial officer who shall decide the same in a summary manner.
(b)
The judicial officer's decision shall be final for the purpose of the action or matter in respect of which such document is lodged and shall discharge the clerk of the court under paragraph (1) hereof; but such decision shall be without prejudice to any other rights of any person interested.
Notes
(1) For the purposes of item 1 "action" does not include a counterclaim.
(2) No charge shall be made for the inspection of the record in any case—
(a) to any party at any time before judgment;
(b) to anyone within seven days after judgment.
