RULES OF THE MAGISTRATES’ COURTS

1 C Botswana Government Extraordinary Gazette dated 4th March, 2011 Statutory Instrument No. 13 of 2011 MAGISTRATES COURTS ACT(Cap. 04:04) RULES OF THE MAGISTRATES COURTS (Published on 4th March, 2011)ARRANGEMENT OF ORDERSORDERPART I CIVIL PROCEDURE RULES1. Citation, Application and Interpretation2. Messenger of the court or other person effecting service3. Clerk of the Court4. Representation of Parties5. Poor Litigants6. Service of Process, Notices and Documents7. Edictal Citation8. Substituted Service9. Summons Commencing Action10. to Defend12. Judgment by Consent or Default13. Assessment of Damages14. Payment into Court15. Exceptions, Applications to Strike Out and Special Defences16.

2 Summary Judgment17. Plea18. Reply19. Discovery, Inspection and Production20. Medical Examinations21. Things in general22. Expert Testimony23. Admissions24. Setdown25. Trial26. Withdrawal, Dismissal and Settlement27. Dismissal for Want of Prosecution28. Record of Proceedings29. Applications and Petitions30. Arrests, Interdicts, Attachments, and Mandamenten van Spolie31. Subpoenas32. Interest33. Execution34. Civil Imprisonment36. Garnishee Proceedings37. Rescission and Variation of Judgments and Orders38. Civil Appeals39. Assessors40. Costs41. Taxation of Costs42 Review on Taxation43. court Fees44. Messenger Fees45. Case Management: Allocation of Cases and Case Management Conferences46.

3 General47. Tariff of allowances payable to witnesses in civil proceedings in the Magistrates CourtsPART II CRIMINAL PROCEDURE RULES48. Criminal Case Record49. Assignment of Criminal Cases50. Criminal Applications51. Arraignment Procedure52. Plea of Guilty53. Procuring Evidence for Trial54. Trial Procedure55. Hostile Witnesses56. Production and proof of previous convictions57. Address by the Parties on Sentencing58. Private Prosecutions59. Revocation of Cap. 04:04 (Sub. Leg.)SCHEDULESIN EXERCISE of the powers conferred by section 68 of the Magistrates court Act, theChief Justice hereby makes the following RULES PART I CIVIL PROCEDURE RULESORDER 1 CITATION, APPLICATION AND RULES may be cited as the RULES of the Magistrates (1) Order 17 and 25 of these RULES shall be applicable only if (a)the plaintiff does not apply for summary judgment;(b)the plaintiff, having applied for summary judgment, has his applicationdismissed; or(c)an order is made giving the defendant leave to defend.

4 (2) The forms contained in the First Schedule to these RULES may, whereapplicable, be used with such variations as the circumstances may require, butnon-compliance with this rule shall not in itself be a ground for exception (3) All process of the court for service or execution, and all documents orcopies to be filed of record, shall be on A4 paper of good quality.(4) All process of the court shall bear the name and address of the partysuing out.(5) The clerk of the court shall, before issuing any process which is notsubstantially in the form required by these RULES , refer it to the magistrate whomay direct him either to issue or to refuse to issue the process.

5 (6) The provisions of subrule (5) shall not apply to (a)any matter which the opposite party may except under these RULES ; or(b)endorsements of particulars of claim under Order 9 otherwise than asto costs, fees and (1) In these RULES , unless the context otherwise requires clerk of the court includes any assistant clerk and any person appointed toact as such clerk or assistant; commissioner means a commissioner of interrogatories; company means an incorporated or registered company in terms of theCompanies Act; copy means a true and correct copy endorsed by the clerk of the court ; court house means the building in which the magistrate s court is usually held; default judgment means a judgment entered or given in the absence ofpleadings or appearance by the party against whom it is made in terms ofOrder 12 of these RULES ; deliver , except in Order 6, means to file the original with the clerk of thecourt and to serve a copy on the opposite party; delivery means filing and serving; endorse means to sign and date stamp; filing means filing with the clerk of the court ; give security means to give security to the satisfaction of the clerk of thecourt, by (a)payment into court of the amount in question.

6 Or(b)giving of a security bond by a party either with someone as his suretywho is approved by the clerk of the court , or by two or more personswho are so approved; Guardian s Fund means the fund established under section 101 of theAdministration of Estates Act; judgment includes any decision, decree, determination, finding, sentence ororder of the court ; Messenger of the court includes a court bailiff, a deputy sheriff and anyperson specially approved of by the court to effect any particular service; money includes all coined money, whether current in Botswana or not, andall banknotes, bank-drafts, cheques, orders, warrants or authorities forthe payment of money; notice means notice in writing; owner when used with reference to property or acts, includes corporationsof all kinds and any other associations of persons capable of owning orholding property; they also, when relating to Government property,include the President; party means any person who is a party to the proceedings.

7 Pending matter means a matter in which a summons has been issued andwhich has not been withdrawn, discontinued or dismissed and in whichjudgment has not been given;(Cap. 31:01)(Cap. 42:01) place of security means the place appointed by the magistrate for thesafekeeping of money, securities or other articles of value; plaintiff , defendant , applicant , respondent and party include, forthe purpose of service, notice, appearance, endorsement, signature andpayment of moneys out of court , or out of the hands of the messenger,the attorney appearing for any such party and the mayor, chairman, townclerk, secretary or similar officer of any local authority or similar bodynominated by it for the purpose.

8 Property includes everything animate or inanimate, corporeal or incorporeal,capable of being the subject of ownership; Registrar means the Registrar of the High court and includes a DeputyRegistrar or a Senior Assistant Registrar performing the duties of theRegistrar; and valuable security includes any document which is the property of any personand which is the evidence of the ownership of any property, or of theright to recover or receive any property.(2) Where anything is required by these RULES to be done within a particularnumber of days or hours, a Saturday, Sunday or public holiday shall not becounted as part of that period.(3) Computation of time shall commence from the time of service foranything that requires filing and service under these RULES .

9 (4) All distances shall be calculated over the shortest route reasonablyavailable in the 2 MESSENGER OF THE court OR OTHER PERSON messenger who is not an officer within the Public Service Actshall give security to the satisfaction of the Registrar for the due fulfilment ofhis duties and for the due and punctual disposal of all moneys which shallcome into his hands by virtue of his (1) Except as otherwise provided in the Act or these RULES , the processof the court shall be served or executed, as the case may be, through themessenger.(2) Service or execution of process of the court shall be effected withoutany avoidable delay by a messenger or other person effecting service.

10 (3) The messenger shall, where there is resistance to the due service orexecution of the process of the court or where resistance is reasonablyanticipated, have power to call upon any member of the Botswana Police Servicefor (1) A messenger or any other person effecting service shall endorse onor annex to all process entrusted to him for service or execution, a return showingthe date and the manner of service and the result of execution; and shallimmediately return the said process to the clerk of the court .(2) A messenger or any other person effecting service shall, as soon as ispracticable after service, file with the clerk of the court a return or affidavit ofservice stating that (a)service has been duly effected and the date, time and place of suchservice; or(b)he has been unable to effect service and specify the reason for suchinability.