The development of the Judiciary is intertwined with the political development of this country. The administrative changes that have taken place from the time of the Protectorate to date have also affected the Judiciary and its nature. The former Chief Justice, Hon Julian Mukwesu Nganunu, summed up the functions of the Judiciary as follows; ‘to promote the resolution of disputes in Courts and to deal with committed crimes. By so doing, the judiciary is contributing to the maintenance of peace and tranquility’.
The Judiciary is established by the Constitution as one of the three arms of Government. It plays a pivotal role in the governance of the country. Its role is defined in the constitution as the adjudication of both civil and criminal cases. It comprises of the Court of Appeal and the High Court.
Botswana has a dual legal system; that is the received law, Roman Dutch Law subsisting side by side with customary law. It is not surprising that is the case because, like all other colonies, Botswana had inhabitants of the colonial master living side by side with the indigenous people of the country. Each had to be governed by a legal regime, which it was familiar with. Although the two societies interacted, the institutions of their governance were differently constituted. Inhabitants of the Colonial Master were governed by the received law while the indigenous (Africans) were regulated under customary law.
The Judiciary is independent from other arms of government; that is the executive and the legislature. To further reinforce the independence of the Judiciary and to ensure that it is insulated from interference from the other arms, the Constitution creates the Judicial Service Commission. The JSC’s responsibility is the assessment and recommendation of officers to be appointed for Judicial posts. Judicial appointments, although made by His Excellency the President, are made on the recommendations of the Judicial Service Commission, except the appointment of the Chief Justice and the President of the Court of Appeal. The powers and main functions of the Judiciary are defined under part VI, Section 95 of the Constitution as to hear and determine any civil and criminal cases under any law. An effective and efficient Judiciary will discourage people from taking the law into their own hands and promote an amicable resolution of disputes. Judicial Independence is a right that a citizen must demand and enjoy.
The major function of the judiciary under the AoJ is:
- To interpret the law
- To resolve disputes by adjudicating both criminal and civil cases.
- To ensure that the other arms of government act according to the constitution.
- To adjudicate criminal cases brought to court by the state and civil cases brought by individuals and private entities.
- The presiding officers at the Court of Appeal are referred to as Justices of Appeal, at the High Court are referred to as Judges of the High Court while at the Magistrate court they are referred to as Magistrates.
- The Court of Appeal is a Supreme Court of record with plenary review, appellate and, where appropriate first instance jurisdiction. it hears all appeals from the High Court and Industrial Court.
- The High Court is a superior court of record and has unlimited jurisdiction to hear all criminal and civil cases. The case types that are heard by the high court include, matrimonial cases, civil cases, criminal cases, civil appeals and miscellaneous applications. The High Court is a court of review, it reviews decisions of the Magistrate court and the Customary Court of Appeal.
- Magistrates’ Courts exercise jurisdiction as prescribed in the Magistrates Court Acts (CAP 04-04). It hears both civil and criminal cases. In civil cases the Magistrate Court hears claims of up to BWP 60,000.00. The case types that are dealt with by the Magistrate court include, Maintanance cases, Civil cases, Criminal cases, Miscellaneous cases.
- The Adminstration of Justice also has specialised courts; these includes Corruption Court (High Court level),then Small Claims Court, Stock Theft Court and Traffic Court (magistrates level).
The Administration of Justice has four major divisions: Legal, Judicial, Master’s and Corporate services:
Legal Division
- Operation of the criminal and civil registry.
- Appointment of pro-bono/pro-deo attorneys.
- Implementation of judicial reforms.
- Addressing the queries of the Ombudsman’s office.
- Administration of court orders and decree absolutes.
Judicial Division
- Taxation of the bill of costs.
- Issuance of writs of summons for civil imprisonment.
- Supervision of deputy sheriffs, courts bailiffs and messengers of court
- Assessment of damages.
- Judgement of security for costs.
- Default judgements.
- Settlement of record
The Office of the Master
- Liquidation of companies and insolvencies,
- Administration of estates of deceased person
- Administration of the guardian fund.
Corporate Services
- Financial and manpower budgeting
- Judicial officers welfare and other administrative duties.
- Support staff welfare
The Court of Appeal
An appeal to the Court of Appeal may take two forms:
- as of right
- by special leave
The High Court
This is the court that lies between the Magistrate Court and the Court of Appeal. It was created as a superior court with unlimited original jurisdiction to hear and determine any criminal and civil cases under any category of law.
Magistrate Courts:
Magistrate court is created and defined by the Magistrate Court Act. It is subordinate to the High Court and presided over by the magistrates.
The Magistrate court deal with the following cases::
- Maintenance ( Paternity and maintenance orders)
- Miscellaneous( Adoption of children, Restraining order,
- Civil suits ( civil debts, breach of contracts, damages, claims not exceeding BWP 60 000 00 etc)
- Criminal cases (rape, robbery, theft, assault etc.)
Opening hours: 07:30 to 12:45 and 13:45 to 16:30, Monday to Friday, except public holidays.
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