What is a Will?

A will, often referred to as a last will and testament, is a legal document that outlines a person’s wishes regarding the distribution of their assets and the management of their affairs after their death. The person making the will is called the testator. It typically includes instructions on how the testator’s property, possessions, and finances should be divided amongst his/her heirs/ beneficiaries.

Who can make a Will?

Any person who is 16 years or older may make a Will, unless s/he is mentally incapable of appreciating the nature of making a Will.

What are the requirements for a valid Will?

• It must be in writing.
• The Will must be signed at the end of every page by the testator and two witnesses.
• The testator and the two witnesses must sign the Will in the presence of each other.
• Witnesses may not benefit from the Will.
• If the testator is not able to sign the Will (for example, where s/he cannot read or write), someone can sign the Will on his/her behalf and under the direction of the testator or the testator can sign the Will by making a mark (like a thumbprint or a cross). A commissioner of oaths must be present when the testator makes the mark or someone else signs on behalf of the testator.
• Any provision in the Will may not be against the law of the Republic of Botswana, public interest or good morals.

What are the basic elements that must be included in the content of the Will?

• The will should be practical and care must be taken that legal and practical restrictions are adequately provided for.
• The Will must contain:
  • a distribution of property;
  • the extent of the interest in the property (full or limited ownership); and
  • the identities of the heirs (the persons who must receive the property).
• The Will can also make provision for the nomination of an executor and a legal guardian of the minor children of the testator; a testamentary trust; and a clause stating that all previous Wills are cancelled.

What will happen if a person dies without a Will?

• If a person dies without a Will, the property will be distributed in terms of the laws of intestate succession. This refers to the laws which govern the property of a person who dies without a will.
• According to intestate succession, property will be distributed amongst the deceased’s spouse, children and family (if any) according to certain rules relating to the order in which they will be entitled to inherit. The distribution may vary according to the deceased cultural practices, and if his lifestyle and nature of his estate demands customary administration.
• If the deceased did not have a spouse, children or family, the property will be forfeited to the State.

Will a divorce have any effect on a Will?

• A divorce will not invalidate the Will or the part of a Will where a bequest was made to an ex-spouse.
• The law provides that if the testator dies within three months after the divorce, it will be assumed that his/her ex-spouse died before him/her. This means that if the ex-spouse was an heir in the Will, s/he will not inherit from the estate of the testator.
• If the testator dies three months after the divorce without changing his/her Will, it will be assumed that the testator wanted to include his/her ex-spouse in the Will. This means that s/he will still inherit as per the testator’s Will.

Simply, put if a testator dies within three months of his/her divorce, and that person executed a will before the divorce, the will shall be implemented as if the previous spouse had died before the date of divorce, unless it is clear from the will that the testator intended to benefit his ex-spouse despite the marriage ending.

Where must a Will be kept?

• Wills should be kept in a place that is safe and where it can be easily found after the death of a testator, normally at a bank or a law firm.
• The testator must inform a reliable person of the whereabouts of his/her Will.

• The law encourages, recognizes and provides for peaceful, amicable and lawful means of resolution of industrial disputes, which means disputes that may arise between employers, employees and indeed, the Government.
• In order for the dispute resolution process to be effective and not individualized, the law encourages and provides for collective dispute resolution processes. These include collective bargaining, conciliation, arbitration and finally judicial adjudication or hearings before the Courts.
• In situations where the parties to the industrial disputes, the employees or workers, trade unions, employers and employers’ organizations fail to settle their disputes amicably either through conciliation or arbitration, in terms of the law, they have the right to resort to less amicable means of resolving their disputes through either strikes or pickets by the employees or lockouts by the employers.

What is a strike?

• The Botswana Trade Dispute Act defines a strike to mean the cessation of work by a body of employees in any trade or industry acting in combination or under a common understanding or concerted refusal or a refusal under a common understanding by such body of employees to continue to work.
• Strike action is an essential element in the collective bargaining process because it ensures that an employer bargains more fairly. It takes place to resolve a dispute between the employees and their employer. The dispute must be regarding something in the employer’s control such as wages, improved working conditions and other disputes of mutual interest.
• Therefore, a collective refusal to work balances the employer’s ability to make unilateral decisions to lock out workers or shut down the business.

• Strikes are prohibited in essential services, where for instance the interruption of that service would endanger the life, personal safety or health of the whole or part of the population of Botswana.
• Disputes regarding essential services must be referred to the Labour Commissioner for arbitration.

Immunity from civil liability

• Participation in the strike is deemed not to constitute a delict or breach of contract in compliance with the provision set out for the strike or lockout.
• A participant may not be dismissed for taking part in a strike or lockout. This shall not preclude the employer from dismissing an employee during a strike or lockout for any other reason that is valid and fair.
• Civil proceedings may not be instituted against any person for participating in a strike or lockout carried out in compliance with the set-out regulations except any act in contemplation or furtherance of a strike that constitutes defamation or an offence.
• An employer is not obliged to remunerate an employee for services that the employee does not render during a strike or lockout.

Unlawful acts

• Conduct that constitutes a criminal offence is expressly excluded from protection, thus trespass, assault, intimidation, vandalism and the like will attract both civil and criminal liability.

What is a lock-out?

• It means the closing of a place of employment by an employer in any trade or industry or the suspension of work by such an employer or the refusal by such an employer to continue to employ any number of his employees in that trade or industry
• By taking part in a lockout in compliance with the law, a person does not commit a delict or a breach of contract, but an employer is not obliged to remunerate an employee for services that the employee does not render during a lockout.
• Therefore, an employer must not institute civil legal proceedings against any other person for participating in a lockout in compliance with the law, unless those proceedings concern an act that constitutes defamation or a criminal offence.

Matters in respect of which a strike or lockout is permissible.

• The subject matter of a protected strike or lockout is limited to disputes of interest only. Disputes in respect of essential service must be referred to arbitration.

When can employees strike and an employer lock-out?

• Where any Industrial action in furtherance of a trade dispute is contemplated by an employer(s) or by employees in an essential service, the trade dispute shall be reported to the Commissioner or a labour office delegated by the Commissioner, by an organisation acting on behalf of the employer(s) or employees as the case may be-
• Step 1: Refer dispute to the Commissioner or a labour office delegated by the Commissioner within 30 days of dispute. Referral must be made in writing, or orally if the employee cannot read or write, and must satisfy the Commissioner that a copy of the referral has been served to the other party to the dispute, unless Commissioner is satisfied its service was impossible.
• Step 2: The Commissioner may then assign a mediator and inform the parties to dispute the details of the mediation meeting.
• Step 3: The mediator shall attempt to resolve a dispute referred to him within 30 days of the date the dispute was received by the Commissioner or labour officer delegated. The 30-day period may be extended by agreement by the parties or via a collective labour agreement.
• Step 4: Should mediation fail after the 30 days has expired, 48 hours’ notice of the commencement of the strike or lockout has been given in the prescribed form to the Commissioner and the other parties to the dispute; and the strike out or lock out conforms to provisions sat out in the Act, and to any agreed rules regulating the conduct of a strike or lockout or any rules determined by the mediator.

What are the consequences of a protected strike?

• The Act gives strong protection to strikes and lockout that comply with its provisions.
• Employees may not be dismissed for participating in a protected strike.
• It guarantees immunity from civil claims. It provides that by participating in a protected strike, a person does not commit a delict or a breach of contract.
• An employer must not institute civil legal proceedings against any other person for participating in a protected strike or a lockout, unless those proceedings concern an act that constitutes defamation or a criminal offence. Employees may be dismissed for causing damage to the property of their employer, or another person in the workplace, during the strike.
• The principle of “no work – no pay” applies. The employer does not have to pay the employees during a strike. However, the employer has to make payments in kind which include food, accommodation and other benefits such as pension, medical aid and so on.
• An employee or member or official of a registered trade union may, in furtherance of a strike in compliance with the law, hold a picket at or near the place of employment for the purpose of peacefully communicating information and persuading any individual not to work.
• Despite the provisions of any contract of employment or collective agreement, an employer must not require an employee who is not participating in a protected strike or whom the employer has not locked-out, to do the work of a striking or locked-out employee, unless the work is necessary to prevent any danger to the life, personal safety or health of any individual.
• The employer must not hire any individual, for the purpose, in whole or in part, of performing the work of a striking or locked-out employee if the parties have concluded an agreement on the provision of a minimum service during the strike or lockout, or if no such agreement is concluded within 14 days of the commencement of the strike or lockout.

When does a strike end?

• Since the continuation of a strike is dependent on the existence of the grievance or dispute, once the essential cause of the dispute is removed and there is an agreement and therefore the core of the strike has disappeared, the strike terminates.

What is a restraining order?

• A restraining order or protective order is a legal order given by a court to protect a person in a situation often involving alleged domestic violence, child abuse, assault, harassment, stalking or sexual assault.
• It typically prohibits the person named in the order (the respondent) from contacting, harassing, intimidating, or coming near the person who sought the order (the petitioner).

Who can apply for a restraining order?

• All members of the public are eligible to apply for a restraining order.
• Any aggrieved party who feels there is a justifiable reason to issue restrain or block another party from being permitted to come in contact with them or harass them may apply to the Magistrates Court for a restraining order.

How do I obtain a restraining order?

• Applicants must file an application to the clerk of their local Magistrate’s Court.
• After the application has been filed, it is allocated a case number. The matter is then assigned to a magistrate who will then allocate a date of hearing.
• The Applicant then arranges service of the Application on the Respondent, and must then file an affidavit of service.
• In cases of domestic violence, police officers may be asked to serve the restraining order to the other party.
• The matter is then set for hearing. At the hearing, the magistrate listens to both sides of the story to make a ruling.

What supporting documents are required?

• A written/typed affidavit (The Founding Affidavit) requesting a restraining order and a description of the circumstances and reasons for the order. This affidavit must be commissioned at the nearest police station.
• A notice of motion completed, describing the specific reliefs sought in the restraining order.
• A Certificate of Urgency can be attached if the matter is particularly time-sensitive (e.g. cases of domestic or spousal abuse) to be processed faster. (NOTE: A certificate of urgency is a written document outlining the reason for treating the matter as urgent). This ensures the case is heard almost immediately.

How long will this service take?

• The processing of a restraining order application without a Certificate of Urgency typically takes about a week.
• A restraining order application accompanied by a Certificate of Urgency typically takes one to two days.

Consequences of violating a restraining order

• If your abuser breaches, or breaks the conditions of the restraining order, the complainant/victim is obliged to go to the police station and open a criminal case. The complainant must file an affidavit and in an explicit manner and include all forms and dates of abuse in the affidavit.

What must a person do after a motor vehicle accident (“accident”)?

The driver of a vehicle on a public road which is involved in or contributes to an accident in which any person is killed or injured or suffers damage in respect of any property or animal shall:

• Immediately stop the vehicle;
• Ascertain the nature and extent of any injury sustained by any person;
• Render such assistance to any injured person as he or she may be capable of rendering; and
• Ascertain the nature and extent of any damage sustained.
• It is imperative to write down all the necessary details of the other person involved in the accident. You need their name, address, telephone number and email address, so that they can be contacted by you or your insurance company.
• Other important particulars include ID number, driving license number, vehicle registration number, as well as the make and colour of the car.
• Note down important details such as time of the accident, location and the number of passengers and/or people involved in the crash.
• Take as many pictures of damage to your and other vehicles as possible. Should the other party make a false claim of any other damage to their car that was not caused by the accident in question, the images might serve as proof against a claim.
• Report the accident within 24 hours after the occurrence of the accident at any police station or at the office of a traffic officer.

What must a person NOT do after accident?

• A vehicle which is involved in an accident in which any person is killed or injured shall not be removed by any person from the position in which it came to rest, except if such removal is authorised by a traffic officer.
• But, if the accident causes a complete obstruction of the roadway, such vehicle may without such authorization be moved sufficiently to allow the passage of traffic, providing the person moving the vehicle ensures that the stationary position of the vehicle is first clearly marked on the surface of the roadway before it is moved.
• Do not leave the accident scene until all contact, personal and vehicle details have been noted.

What is the Motor Vehicle Accident Fund (MVA Fund) about?

• The fund was born with the aim of providing compensation in the form of benefits (Medical Care and Rehabilitation, Loss of Income, Loss Of Support Funeral Expenses, Incidental Expenses, Enhancement of quality of life) to road accident victims, provide third party insurance cover to drivers and owners of motor vehicles, promote road safety and accident prevention and deal with all matters relating to the carrying out all of the above.

Who can claim from the MVA Fund?

• Any person injured in a road crash within the borders of Botswana is eligible to be covered up to a maximum of P1,000,000.00 in benefits as defined in the MVA Fund Act of 2007. However, a negligent party’s claim is limited to P 300,000.00 and only to the extent of Medical Treatment and Rehabilitation.
• If you are a non-citizen and you are injured in a road accident during your visit to Botswana, subject to the provisions of the Act, MVA Fund only covers treatment and rehabilitation costs while you are in Botswana, it is therefore not a replacement for travel insurance and does not cover illness, disrupted travel plans or emergency travel to get you back home.

Can a person claim damages to his/her motor vehicle from the Motor Vehicle Accident Fund (“MVA”)?

• No, the MVA fund does not cover damages to a person’s personal property.
• If a person wants to claim for his damaged property, he will have to institute a claim in a civil court against the driver of the motor vehicle or his employer if he was driving a company motor vehicle.

When can a person claim from the MVA fund?

• Within three years of the date of accident. (This is in accordance with the new MVA Fund Act of 2007).
• Prescription is not applicable to minors and persons suffering from mental disorders.

What is micro lending?

• Micro lending can be described as an agreement between a borrower and the lending company, (Micro lender/Cash loan).
• When applying for a Micro loan, the borrower has the right to information pertaining to their loan(s) i.e. the capital amount borrowed, interest payable, number and amount of installments, any additional charges such as penalty charges, credit life insurance, and date of first installment and date of last payment.
• It is the right of the borrower to ask for an explanation of information/terms/documents or anything they do not understand regarding the loan. A borrower should not sign unless such a loan application/agreement until he/she understands the terms and conditions of the agreement.

The Department of Micro lending at NBFIRA is charged with the implementation of provisions of the Micro Lending Regulations and the NBFIRA Act defined as Financial Services Law under NBFIRA Act. Its functions include, licensing, off-site monitoring, on-site inspections, enforcements, and complaints handling.

What are objects of the NBFIRA Act?  

To regulate and supervise Non-Bank Financial Institutions for the purpose of contributing towards financial stability.

Who may conduct the business of microlending?

• Any person may conduct the business of a microlender if he or she is registered as a microlender in terms of the Act and is licensed to operate as such.
• Any person who carries on a business as a micro lender other than in accordance with the licensed commits an offence and on conviction is liable to a fine not exceeding P2500 for each day on which the offence occurs or continues to occur or to imprisonment for a period not exceeding 5 years, or to both.

The rights of a borrower

The borrower has the right to information pertaining to their loans for example:

1. The capital amount borrowed
2. The interest payable
3. The number and amount of installments
4. Any additional charges such as penalties, credit insurance, date of first installment and date of last payment.
5. The borrower has a right to ask for an explanation of information/terms/documents or anything they do not understand regarding the loan.

What conduct are Micro lenders specifically prohibited from engaging in?

Micro lenders are prohibited from:

1. Require disclosure of the borrower’s personal identification number (PIN) used for a bank card: and or
2. Take possession of a borrower’s bankcard, national identity card (Omang) or any other official document.

Any continued retention of these documents or contravention of this section of the regulations shall attract civil penalties as prescribed in the NBFIRA Act.

3. They shall not engage in conduct that is or is likely to mislead or deceive any person. An example of this is falsely representing that a financial service is of a particular standard, quality, value or grade
4. A micro lender who engages in unfair practices, as determined by the Regulatory Authority, and given via notice in the Gazette, shall be liable to a civil penalty not exceeding P20 000 to be imposed by the Regulatory Authority.

When and how can borrowers lodge their complaints?

• Complaints should be lodged with NBFIRA only after the customer has attempted to resolve the matter with the cash loan/pawn shop and the attempts have failed.
• Complainants are encouraged to submit their complaints in written form to the cash loan/pawn shop as well as to NBFIRA. This may be in either English or Setswana.
• The complainant must give the following information when lodging a complaint:

1. 1. Full name, Surname and ID number
   2. Contact Details
   3. Description of complaint
   4. Supporting evidence if there is any

How can a person get married in Botswana?

A person can get married in terms of a civil marriage or customary marriage.

• Civil marriage is when a man and a woman are married by a marriage officer. All magistrates are marriage officers. Most pastors, priests and other church leaders are also marriage officers. Any person with a marriage certificate has a civil marriage.
• Customary marriage is when a man and a woman are married according to the traditions of their community, but without a marriage officer. The law on customary marriages is different in different communities. Customary marriages are not registered in the same manner civil marriages are.

What are the general requirements for a valid marriage?

• Both persons to the marriage must give consent to get married and must be older than 18 years of age.
• A person younger than 18 years of age, needs the permission of his/her parent/s or guardian/s to get married. No person younger than 18 years of age can enter into a civil marriage.

The marriage must be lawful, for example:

• • persons who are closely related (such as brother or sister, or parent and child) may not get married; or
  • a person may not have more than one marriage at a time, except for customary marriages.
  • Persons must demonstrate that they have never been married before or their marriage has been dissolved either by death or by other lawful means. Individuals should be prepared to present divorce or death decrees, as necessary.

• Certain formalities must be adhered to, such as that the marriage must be concluded by a marriage officer and in the presence of two witnesses.
• A marriage must be registered.

What is a civil marriage?

• It is a marriage that can only be entered into between a man and a woman and governed by Common law.
• Civil marriages must be conducted by an authorized official of the law and registered at the District Commissioner.

What is a customary marriage?

• It is a marriage entered into between a man and a woman, negotiated and celebrated according to the prevailing customary law in their community.
• A marriage conducted customarily must have the approval of the local chief and be conducted at the “kgotla,” which is the customary court

What is a religious marriage?

• It is a marriage entered into in terms of a religion such as the Islamic and Hindu faith.

What is maintenance?

Maintenance refers to the obligation of one person to contribute, in part or in whole, to the cost of living of another person.

• The legal duty or obligation to support a person is based on the relationship between the persons, the need to be supported and the ability to support.
• Maintenance is usually expressed in an amount of money per month.

Who is entitled to receive maintenance?

• All children are entitled to receive maintenance from their parents, irrespective of whether the child is born inside or outside the marriage of the parents;
• Spouses are primarily responsible for each other’s maintenance.

Where can an application for maintenance be made?

Unless a maintenance order has been given as an order from the High Court as part of the settlement of a divorce, an application for maintenance must be made against a Defendant/Respondent (person who must pay maintenance) at any Maintenance Court (Magistrates Court) in the district where the complainant (person who applies for maintenance) or the child, on whose behalf maintenance is claimed, resides or works.

Who can apply for maintenance on behalf of a child?

Child maintenance is claimed by any person who has guardianship or custody of a minor child. The person does not necessarily have to be the parent but must be able to show that the person legally responsible for the child’s maintenance is not performing the duty.

What expenses can be claimed for in respect of a child?

Total maintenance costs for a child must cover all the child’s reasonable needs for a proper living and upbringing. Maintenance will include:

• Cost of the daily upkeep of the child;
• housing, water and electricity;
• food, clothing and toiletries;
• transport;
• childcare services
• medical expenses (such as prescription medicine and treatment by a doctor, dentist, psychologist or psychiatrist);
• Education

What should a person take to court when applying for maintenance?

• The applicant needs to bring evidence of the expenses and how the money they seek is to be spent.
• Identity document of the complainant.
• Complainant’s contact details, such as telephone numbers and home and work addresses.
• If maintenance for a child is claimed, the birth certificate of that child.
• If maintenance for the spouse is claimed, the marriage certificate or divorce order where maintenance order was granted.
• A full list of expenses and any proof of same, such as receipts.
• The complainant’s pay slip and proof of any other income.
• As much detail as possible regarding the defendant, such as telephone numbers, home and work addresses, list of known income and expenses, and so on.

What happens after the application has been made?

• The respondent needs to be served with the application which will have the date of hearing sought by the applicant.
• The applicant must then draft an affidavit as proof of service to the respondent and file it at court before the date of the hearing.
• The Magistrate will hear from both parties and reach a decision as to the maintenance to be provided monthly. The court will also give directions as to where the monies are to be paid, in most cases the money is paid into the applicant’s bank account.

How can a maintenance order be enforced?

If the defendant fails to make a payment of maintenance in accordance with a maintenance order, the following remedy will be available to the complainant:

• The complaint can report the matter to the nearest police station as lack of paying maintenance is a criminal offence and is liable to imprisonment for a term of up to 1 year.

Until when must a child be maintained?

A maintenance order made in favour of a child ceases if and when:

• the child dies;
• the child attains the age of 18 years, but if the child is attending an educational institution for the purpose of acquiring a qualification which would enable him or her to maintain himself or herself, the maintenance order does not terminate until the child attains the age of 21 years or is self-sufficient.

• A garnishee Application is an Application in which a successful plaintiff known as a judgment creditor makes an application to court to obtain the judgment debt or part of the judgment debt from the salary or from any source of income/funds from the defendant/ judgment debtor.
• A Garnishee application is appropriate when a judgement has been obtained and the defendant has not made payment. This is to say it is made within the same case, under the same case number.
• The Plaintiff can seek to get a judgment debt either in whole, if the plaintiff has information that the judgement debtor has the means to pay the debt immediately from any source that owes him/her money, or in monthly installments from the defendant’s salary.

Procedure

• Under the same case number, the plaintiff makes an application via notice of motion together with a founding affidavit and draft order.
• In the founding affidavit, the Applicant states to the court the background of the case, how judgement was obtained, the information they have regarding the source of funds, and what they seek from the court.
• The notice of motion and draft order set out the amounts to be claimed and the institutions they are to be claimed from.
• Usually, the application is filed as an ex parte application at the initial stages. This means that the application is made directly to the court without serving the judgement debtor. This is done so that the judgement debtor does not have notice of the application and potentially removes the funds from the account.
• The application is then enrolled for hearing and the Applicant will be granted a rule nisi, which is a temporary order of court. The effect of the rule nisi is to prevent the judgement debtor from removing the funds from his accounts.
• The judge will also give the Applicant a return date in which s/he is to serve the judgement debtor with the application and the rule nisi.
• On the return date, the judgement debtor is expected to file his/her papers and to come to court to explain to the court why the final garnishee order should not be granted.
• Usually, if the Applicant is aware of any funds in the judgement debtor’s account, the Bank will be cited in the application as a second Respondent.
• Note: In recent cases, the Banks will require Sheriff’s to provide a garnishee order in addition to a writ of execution to enable them to transfer the funds to them.
• If, on the day of the return date, the judge is of the opinion that no substantive response has been given by the judgement debtor, or that the response is not sufficient, the order will be granted for payment via garnishee, is to be paid in full or in installments.

Can a garnishee order be cancelled, amended or suspended?

• A court may on good cause shown, cancel or rescind, amend or suspend a garnishee order.
• If a debtor cannot maintain him or herself or his or her dependents after a garnishee order has been issued, the court may cancel or amend it in such a manner that the debtor, and his or her dependents, will have sufficient means to survive.

What happens when the debtor leaves the service of his/her employer?

• The judgment debtor must immediately advise the judgment creditor, in writing, of the name and address of his or her new employer.
• The judgment creditor must serve a certified copy of the garnishee order on the debtor’s new employer, with an affidavit specifying the payments received since the garnishee order was issued, the costs incurred and the outstanding balance.
• The old employer will be relieved of its payment obligations and the new employer is now bound to the garnishee order.
• If the debtor becomes self-employed, he or she must still comply with the garnishee order.

What is domestic violence?

Domestic violence means any controlling or abusive behavior that harms the health or safety of the applicant and includes—

1. physical abuse or threat thereof;
2. sexual abuse or threat thereof;
3. emotional, verbal or psychological abuse;
4. economic abuse;
5. intimidation;
6. harassment;
7. damage to property;
8. where the applicant and the respondent do not stay in the same home, entry into the applicant’s home without his or her consent.

What is a domestic relationship?

The complainant and respondent will be considered to be in a domestic relationship if they are:

• married to each other according to any law, custom or religion;
• living together in a long-term relationship without being married (cohabitation);
• parents of a child;
• family members related by blood, marriage or adoption;
• dating each other or engaged to each other; or
• staying together in the same home.

Who can apply for a protective/ restraining order?

• All members of the public are eligible to apply for a restraining order.
• Any aggrieved party who feels there is a justifiable reason to issue restrain or block another party from being permitted to take a specific course of action may apply to the Magistrates Court for a restraining order.

What remedies are available to a complainant?

A complainant can approach a court to apply for a protection order and s/he can lay a criminal charge/complaint against the respondent at a police station.

How to get a protection/restraining order?

• Applicants must file an application to the clerk of their local Magistrate’s Court.
• After the application has been filed, it is allocated a case number. The matter is then assigned to a magistrate who will then allocate a date of the hearing.
• Applicants are notified at the contact information provided on their application of the success or rejection of their restraining order application. It is the responsibility of the applicant to serve or pay for the serving of the restraining order to the other party.
• In cases of domestic violence, police officers may be asked to serve the restraining order to the other party.
• Approved restraining orders are available for pickup at the civil registry at the Magistrates Court where the application was filed.

What supporting documents are required?

• A written affidavit (The Founding Affidavit) requesting a restraining order and a description of the circumstances and reasons for the order. This affidavit must be commissioned at the nearest police station.
• Notice of Motion (Form 4) completed, describing the request for a restraining order.
• A Certificate of Urgency can be attached if the matter is particularly time-sensitive (e.g. cases of spousal abuse) to be processed faster. (NOTE: A certificate of urgency is any written document outlining the reason for treating the matter as urgent).

How long will this service take?

• The processing of a restraining order application without a Certificate of Urgency typically takes about a week.
• A restraining order application accompanied by a Certificate of Urgency typically takes one to two days.

Consequences for violating a restraining order         

• If your abuser breaches, or breaks the conditions of the protection order, the complainant/victim is obliged to go to the police station and open a criminal case. The complainant must file an affidavit and in an explicit manner and include all forms and dates of abuse in the affidavit.

Where do I report GBV in Botswana?

• National Sexual Assault Helplines
• Botswana GBV Prevention and Support Centre.

For emergencies, call:

• Gaborone: 749 568 87; 749 568 91; 742 650 81;
• Francistown: 749 568 56; 747 140 70;
• Gantsi: 749 568 53;
• Molepolole: 749 568 99.
• Women Against Rape: 0800 600 387 or +267 71 311 244.

When can spouses get a divorce?

The sole ground for divorce to be presented to the court by either party to a marriage shall be that the marriage has broken down irretrievably.

The Plaintiff (person initiating the divorce) would have to satisfy the court on one or more of the following factors:

1. That the defendant has committed adultery, and the plaintiff finds it intolerable to live with the defendant.
2. That the defendant has behaved in such a way that the Plaintiff cannot reasonably be expected to live with the defendant.
3. That the defendant deserted the plaintiff for a continuous period of at least 2 years immediately proceedings the commencement of the action.
4. That the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the commencement of the action and the defendant consents to the divorce.

What will happen to the children upon divorce?

• Arrangements regarding the children born of the marriage and/or adopted children, such as with whom the children will stay after the divorce and maintenance, can be agreed upon by both spouses.
• If no agreement can be reached between the spouses, the judge will make the decision regarding the children after considering the circumstances of the matter, together with the observations and recommendations made by a Social Worker.

How will the property be divided upon divorce?

• Division of property can be agreed upon by both spouses.
• If no agreement can be reached between the spouses, the property must be divided according to whether the spouses were married in community of property or out of community of property.
• If the parties were married in community of property, the prevailing rule consideration is that the parties’ property ought to be divided equally.

How can a person get a divorce?

Only a division of the High Court of Botswana can grant a divorce. Currently, there are High Court Divisions at Lobatse, Gaborone, Francistown and Maun.

• A spouse who wants to get a divorce starts the procedure by filing and serving a summons on the other spouse.
• The other spouse can either agree to the divorce or defend the divorce.
• A professional, such as a legal practitioner, will be able to assist a spouse with the following:
• Drafting, filing and service of a summons for divorce;
• Defending a divorce;
• Division of the property;
• The care, contact and maintenance in respect of the children; and/or
• Spousal maintenance.