What is a dismissal?

• A dismissal is when a contract of employment between an employer and employee is terminated by the employer.

When may an employee be dismissed?

• An employee may be dismissed if the employer has a valid and fair reason to dismiss the employee.
• That is to say that there must be substantive and procedural fairness when dismissing an employee.
• The employer must follow a fair procedure by affording an employee an opportunity to state his/her case before dismissing him/her.

What is misconduct?

• Misconduct refers to any behaviour or action by an employee that violates company policies, ethical standards, or legal regulations.
• There must be a valid/ lawful reason for a fair dismissal in the case of misconduct, and procedural fairness must be applied where the employee is notified of the allegations against him/her, what his/her rights are and when the hearing will take place.
• A lawful reason is not necessarily a fair reason. This means that a reason could be seen to be fair if a continued employment relationship is impossible.
• Other alternative methods of punishment should be considered
• Misconduct can encompass a wide range of inappropriate behaviors, including but not limited to:

1. 1. Harassment: This includes sexual harassment, bullying, discrimination, or any other form of behavior that creates a hostile work environment for others.
   2. Theft: Taking company property or resources without permission, including stealing physical items, intellectual property, or data.
   3. Fraud: Engaging in deceptive practices for personal gain or to the detriment of the company, such as falsifying records, expense reports, or financial statements.
   4. Substance abuse: Being under the influence of drugs or alcohol while on the job, which can impair performance, endanger oneself or others, or violate company policies.
   5. Violation of company policies: Breaching rules or regulations set by the company, such as misuse of company resources, conflicts of interest, or disregarding safety protocols.
   6. Insubordination: Refusing to follow instructions from supervisors, failing to meet job requirements, or displaying a lack of respect or cooperation towards colleagues or
   7. Engaging in behavior that undermines the reputation of the company, such as gossiping, spreading rumors, or engaging in inappropriate social media activity related to work.

Overall, misconduct in the workplace can have serious consequences, ranging from disciplinary action such as warnings, suspension, or termination, to legal repercussions depending on the severity and nature of the misconduct. Employers typically have policies and procedures in place to address and mitigate instances of misconduct to maintain a positive and productive work environment.

What is incapacity?  

• Incapacity refers to the situation where an employee is unable to carry out or perform to his/her contracted obligations due to the inability on the part of the employee.
• This incapacity could be due to ill health.
• Incapacity is different from misconduct and discipline in that in the case of incapacity the employer does not have to prove ‘fault’ or; blame’ on the part of the employee.
• Dismissal due to incapacity would be considered fair if the employer cannot fairly be expected to continue with the employment relationship bearing in mind the merits of the case/ circumstance of the employee’s incapacity. Secondly, if the employer can ensure that he has taken reasonable steps to assist the employee in terms of affirmative action.

When is a dismissal considered fair and what procedure is followed leading to dismissal?

• Two requirements must be complied with to ensure that a dismissal is fair. There must be substantive fairness and procedural fairness.
• Substantive fairness refers to a valid and fair reason for an employer to dismiss an employee. A valid reason refers to a lawful reason that justifies dismissal.
• The reason is lawful if it is in accordance with common law, statute law, a collective agreement or the contract of employment.
• Procedural fairness is when the employer affords the employee an opportunity to state his case and to bring mitigating circumstances to the employer’s notice.
• The procedure is as follows.
• The employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need a formal inquiry.
• Employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
• The employee should be allowed the opportunity to state a case in response to the allegations.
• The employee should be entitled to a reasonable time to prepare a response and to the assistance of a trade union representative or fellow employee.
• The presiding official at the hearing should be unbiased and should make a fair ruling on the matter and determine an appropriate sentence.
• The presiding official and any other members of the tribunal should not have been involved in the investigation of the matter.
• After the inquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

What remedy does an employee have if s/he has been unfairly dismissed and how can s/he report the case?

• If it is an unfair dismissal, the employer must provide remedies to the employee. There are primarily three remedies for this, reinstatement, re-employment, and compensation.
• Any party to the dispute may refer the dispute in writing to the Labour Commissioner for mediation.
• The person who refers the dispute must satisfy the Labour Commissioner that a copy of the notice of a dispute has been served on all other parties to the dispute.
• Should mediation fail at the District Labour Office and application can be for proceeding to carry on to the Industrial court for determination. Eligible parties include those aggrieved whose matters weren’t resolved at mediation.
• To initiate the process:

1. 1. Obtain a referral certificate from the District Labour Office.
   2. Complete a statement of case form, providing a detailed account of the dispute.
   3. Attach relevant supporting documents such as computations and letters.
   4. File and serve the application on the respondent(s).
   5. Wait for a response from the respondent(s) within the specified timeframe.
   6. If no response, the matter proceeds to default hearing; if a response is received, it must be served on the applicant.
   7. The case undergoes case management by the judge.
   8. A hearing date is set by the court.
   9. The court makes its determination based on the evidence presented.

Supporting documents required include referral certificates, referral forms, failure to reach settlement forms, referral letters, statement of case forms, computations confirmed by the District Labour Office, and any other relevant documents pertaining to the claim.

What is the Consumer Protection Act about?

• The Consumer Protection Act makes provision for the establishment of a Consumer Protection Office; to provide for the protection of the interests of consumers by means of investigation, prohibition and control of unfair business practice; to disseminate consumer-related information; and to provide for matters connected with and incidental to the foregoing.
• It mandates the Consumer and Competition Authority to protect the interests of consumers by means of investigation, prohibition and control of unfair business practices. Some functions under Consumer Protection are:
• To conduct research on consumer protection policies, laws and regulations and to make recommendations on improvements required;
• To receive, investigate and preside over disputes of unfair business practices with the objective of assisting the parties to the dispute to reach a settlement.

Who is eligible to lodge a complaint against unfair business practices?

• Any consumer, class of consumers or consumer organization.
• Any consumer whose interests/rights are violated and having not obtained redress from the business may lodge a consumer complaint of unfair business practice.

Does the Consumer Protection Act apply to all agreements?

• The Act applies to a consumer, class of consumers or consumer organization who have been directly or indirectly unfairly affected by unfair business practices from suppliers.
• The Authority shall be responsible for the administration of this Act and may permit and consider representations made by any class of consumers and consumer organization on any matter of consumer protection and may cooperate with and support the activities carried out by consumer organizations as may be reasonably considered by the Authority.

What type of protection does a consumer get from the Consumer Protection Act?

• The Act makes it a criminal offence to make false or misleading representations by word or conduct with respect to the goods or services being sold.
• It prohibits suppliers from offering gifts, prizes or free items with the intention of not providing such gifts, in the manner offered by increasing the purchase price of goods or reducing the quantity or quality for acquiring the goods.
• It prohibits directly or indirectly promoting or joining or participating in pyramid schemes or multiplication schemes or chain letter schemes.
• The consumer has a right to timely performance and completion of services, performance of the services in a manner and quality, that the consumers are reasonably entitled to expect
• Consumers have a right to safe and good quality goods.
• The Act requires agreements for the supply of goods, to contain warranties by the producer or importer or the distributor that the goods comply with the standards provided.
• The Act provides that a contract for the supply of goods may not have terms which, amongst other things; enables the supplier to unilaterally change the terms of the contract, enables the supplier to price the goods in a manner that is unfair, unreasonable or unjust, to waive the rights of the consumers or to waive the liability of the supplier.
• Suppliers are required to ensure that every term in supply contracts is brought to the attention of the consumer and that they consent to such terms by signing or initialing next to each item.

What can a consumer do if a supplier fails to comply with the Consumer Protection Act?

• A consumer, class of consumers or consumer organization may lodge a complaint with the supplier, preferably in writing. If the complaint is lodged by telephone, ask for an e-mail address to confirm the conversation about the complaint in writing. Normally, a big business has a department that specifically deals with complaints, it is best to follow the procedure prescribed by that department.
• Keep records of the date of the complaint, name of the consultant complained to, the reference number of the complaint, and any other relevant details.
• If the complaint is not resolved by the supplier within a reasonable time, the consumer may lodge a complaint with the Authority who will then investigate and proceed further from thereon, should it deem it necessary.

Civil Procedure in the Magistrate Court

• A civil action is one in which an individual or a company wishes to sue another individual or company for a particular purpose.
• Magistrates courts are found in every District in Botswana and the main commercial centers such as Gaborone, Francistown and Maun have more than one.
• Claims amounting to P100 000 and below must be brought before the Magistrate Court.

Common examples:

• Civil matters may be brought to the Magistrates due to a party’s failure to fulfil the terms of an agreement known as a breach.
• Another reason might be because of a car accident where the motor vehicle is destroyed or damaged by the other party, and the complaining party wants to sue to get their money back or car repaired.
• A landlord may wish to sue for outstanding rentals.

Magistrates Court Process

• The procedure begins with the complaining party (known as the Plaintiff) filing a writ of summons against the offending party (Defendant).
• The writ of summons will contain a particulars of claim in which the plaintiff sets out his/her story and describing to the court the claim s/he seeks from the court.
• Once it is registered at court, the Plaintiff needs to serve/ deliver the writ of summons to the defendant.
• The Defendant then has 7 days to respond to the claim. His response is known as an Appearance to Defend and Defendant’s plea.
• If the Defendant does not defend a claim by filing within 7 days, the Plaintiff can then apply for default judgment.
• Should the defendant file an appearance to defend, the matter will be set for set for roll call before the Magistrate.
• The Magistrate will then schedule the case management process with the parties.
• The initial and final case management conferences are the processes by which the parties assist the court in determining the scope of the dispute. This has the effect of reducing the time needed for the trial.
• The matter is later set for trial where parties must submit oral evidence and documentary evidence through their witnesses to support their claim.
• After trial, the judge gives a judgement as to who has won the case.

Civil Procedure in the High Court

• Any dispute involving a value of more than P100 000 qualifies to be heard at the High Court.
• Similar to the Magistrate court process, a High Court action begins with a writ of summons accompanied by a particulars of claim in which the plaintiff sets out his story and explains to the court the relief he seeks.
• Once it is registered at court, the Plaintiff needs to serve/ deliver the summons to the defendant.
• The Defendant then has 14 days to respond to the summons and his response is known as a Memorandum of Appearance to defend.
• Should the Defendant not file a memorandum of appearance to defendant, the Plaintiff may file a default judgment application after the expiry of 14 days to get a short cut to judgment.
• Should the defendant file a memorandum of appearance to defend, the Plaintiff has 14 days to file a declaration. This is the full story of the Plaintiff’s claim, together with any documents which are relevant to his claim. It is also accompanied by an affidavit sworn to by a person who knows the full facts of the case (usually the Plaintiff himself).
• The declaration is then delivered to the Defendant who has 14 days to file his plea. This would be his full answer to the Plaintiff’s declaration. It is his version of events. It is accompanied by an affidavit sworn by a person who knows the full facts of the case (usually the Defendant himself).
• The case is then scheduled for roll call at the court, at which the further scheduling of the case management process is done.
• The case management process at the High Court involves two meetings known as the initial case management meeting and the final case management meeting. A report is produced after these meetings and filed with the court. Case Management is the process by which the parties assist the court to narrow the issues between them. It is meant to reduce the length of the trial. At the end of this process the matter is then scheduled for trial.
• Evidence is then given at trial by witnesses, who tell the court what they know of relevance to the case.
• After trial, the judge gives a judgement as to who has won the case.

What is civil imprisonment?

• Civil Imprisonment is a drastic remedy meant to force a judgement debtor who has means to pay a judgment debt but refuses to do so. This is where the defendant/ judgment debtor is jailed for the prescribed amount of time as sought and granted by the court.
• It is usually applied for after the Plaintiff/Judgement Creditor has tried all other available avenues and failed to collect the judgement debt.
• The underlying principle of civil imprisonment is that it is not a criminal offense meant to punish the defendant/ judgment debtor. What civil imprisonment is meant to do is to force a recalcitrant debtor (a person who has the means to pay but refuses to do so) to pay the judgment debt.
• A summons for civil imprisonment is filed, along with a copy of the judgement/order and nulla bona.
• One of the rules on civil imprisonment is that the summons for civil imprisonment must be served to the judgment debtor personally (in his hands), whether or not he has an attorney on record. This is because the relief sought by the plaintiff/ judgment creditor involves the Defendant’s/ judgment debtor’s personal liberty.
• Once s/he has been served, the matter will be enrolled at court and s/he will be ordered to appear in court and show the Judge or Magistrate why s/he should not be imprisoned for this debt.
• Usually, at that appearance the judgement debtor/defendant will appear with a copy of his/her salary advice slip and a written budget. This is to show the court their means. If this is done and the Judgement Debtor/Defendant makes a reasonable offer to pay off the debt in monthly installments, the judge/magistrate will likely order the civil imprisonment to be suspended, pending payment of the monthly amounts.
• In most instances where civil imprisonment is ordered, it is because a Defendant/Judgement Debtor opts to not attend the court proceedings.
• Even when the Defendant/Judgement Debtor does not attend the court proceedings, the judge/magistrate usually makes an order granting the civil imprisonment, but suspending the execution of the order for some time.
• It is only when that time period passes and no arrangements are made by the Judgement Debtor/Defendant to pay the debt is a warrant for civil imprisonment issued.
• It is usually granted for 30/60 or 90 days.
• A Deputy Sherriff is then tasked with arresting the Judgement Debtor/Defendant.

Does going to imprison absolve the Judgement Debtor of his debt?

• No, it does not. The judgment debtor is still expected to pay the judgment debt even after being imprisoned.
• A debtor may be imprisoned as many times as is granted by the court provided that the judgment debtor has the means to pay but refuses to do so.

What is a writ of execution?

• When a judgement is pronounced against a defendant/judgment debtor, the plaintiff/judgement creditor can apply for a writ of execution.
• A writ of execution is a document which empowers a Deputy Sheriff to go to the defendant/ judgement debtor to request payment of the debt, which the court has ordered.
• If no payment is made, the Deputy Sheriff can attach the movable goods of the judgment debtor.
• If the movable goods found by the Deputy Sheriff cannot satisfy the judgment debt, the Sheriff issues a nulla bona This is a document stating that the defendant/ judgment debtor does not possess sufficient property which if sold, can realise/ cover the whole judgment debt.
• Once the nulla bona is issued, the next step for the Plaintiff/ judgment creator is to apply for a writ of execution against the immovable property (residential land, commercial buildings, farms etc) of the defendant/ judgment debtor.
• If the Deputy Sheriff finds movable or immovable property, s/he then has to advertise these for sale in the newspapers, according to the Magistrate Court or High Court rules, whichever one applies, based on the value of the claim.
• At the sale, the Sheriff will follow the procedures pertaining to the sale according to the applicable rules of Court.
• For movable goods, the goods are sold to the highest bidder without a reserve price.
• At the end of the sale, the Deputy Sheriff must produce what is known as a vendue roll, which is a report of what happened at the sale, how much was made, how he intends to disburse the funds.
• If the sale proceeds are insufficient to pay the judgement debt and costs (including sheriff costs, transport and advertising) then the Deputy Sheriff can attach more goods for sale.
• If the money raised is insufficient to cover the judgment debt and costs incurred thus far, and there is no more property to attach, the Deputy Sheriff will then issue a Nulla Bona which states that there is no more property to attach to satisfy the debt. S/he may then recommend civil imprisonment.
• Alternatively, if the Deputy Sheriff believes that there may still be property that the judgement debtor is hiding, he may state it in the nulla bona, and a judge at the High Court may order the judgment debtor to give oral evidence regarding his/her means. If this process fails, then the next remedy available to the plaintiff/ judgment creditor is civil imprisonment of the defendant/ judgment debtor.

What is child access?

• Child contact/ access refers to the legal right of a non-custodial parent or guardian to spend time with and visit their child who primarily resides with the other parent or guardian. It encompasses the opportunity for the non-custodial parent to have regular contact and meaningful relationships with their child, even if they do not have physical custody.
• Child access arrangements typically outline the schedule and terms under which the non-custodial parent can visit or spend time with the child, taking into account factors such as the child’s best interests, the parents’ schedules, and any special needs or circumstances of the child or family.
• Access rights can vary depending on the custody arrangement, court orders, and agreements between the parents or guardians. The goal of child access arrangements is to ensure that both parents maintain an active and ongoing presence in the child’s life, promoting the child’s well-being and relationship with both parents.

Parental Rights

• Subject to the best interests of the child, and to section 78 of the Children’s Act, every parent shall have the right, in relation to the child, to-
  1. Have the child live with him or her;
  2. Control and guide the child’s upbringing;
  3. Maintain personal relations with, and have access to, the child if the child does not live with him/her;
  4. Represent the child in all contractual and other legal matters regarding the child’s property and other interests;
  5. Participate in the prescribed manner, in court and other proceedings related to the child;
  6. Appoint a guardian or revoke the appointment of a guardian when has been appointed, subject to the court’s approval, and
  7. Have access to parenting skills programmes put in place in terms of this Act or any other law.

How can a person obtain the right to contact or access to a child?

• Any person who has an interest in the care, well-being or development of a child, may apply for the right to access to such a child at the Magistrates Court, which sits as a Children’s Court.
• The right to contact can also be obtained by agreement with the custodian or parent/s of the child.

What will the court consider when granting an order in respect of contact?

• When considering the granting of order in respect of child contact, the best interests of the child concerned is the paramount consideration. In determining the best interests of the child, the court must take into account the following factors, where relevant:
  • The child’s age, maturity and stage of development, sex, background and any other relevant characteristics of the child.
  • The quality of the child’s relationship with their parent(s) or the individual seeking contact.
  • The level of commitment demonstrated by the parent(s) or relevant individual toward the child.
  • The financial support provided by the parent(s) or relevant individual for the child’s birth and upbringing expenses.
  • The potential impact on the child of any changes in their circumstances, including separation from family members they have been living with. Instances of family violence affecting the child or any family members.
  • The necessity of shielding the child from physical or psychological harm resulting from maltreatment, abuse, neglect, violence, or harmful behavior.
  • Factors such as the child’s age, maturity, developmental stage, gender, background, and relevant characteristics.
  • Any disabilities or chronic illnesses affecting the child.

Can the custodian parent/s refuse contact after a court order in respect of such contact was obtained?

• It is a criminal offence for the custodial parent/s to unreasonably refuse or prevent another person from having contact with the child if an order exists; or
• If the custodial parent/s do not advise the other person in writing of any change of his/her residential address.
• The aggrieved person may:
• Lay a complaint at the police, which offence is punishable with a fine or imprisonment or apply to the Children’s Court or Magistrates Court for committal of contempt of court.
• The aggrieved person must prove that the custodial parent/s acted willfully and mala fide (in bad faith/intentionally misleading the other person).
• A child who is born out of wedlock and does not live with both of his or her biological parents has a right to access the absent parent, and to be nurtured, supported and maintained by such absent parent in accordance with the provisions of the Children’s Act and any other Act which deals with the care and maintenance of children.
• Any parent, other relative or guardian or other person who, without reasonable excuse, refuses the absent parent access to the child shall be guilty of an offence and shall be sentenced to a fine of not less than P2 000 but not more than P5 000, or to imprisonment for a term of not less than three months but not more than six months, or both.
• No person shall separate a child from his or her parents, other relatives or guardian unless it is in the child’s best interests to do so.
• Subject to a child’s age, maturity and level of understanding, any person seeking to separate the child from his or her parents, other relatives or guardian shall seek the child’s consent.
• Any person who contravenes the provisions of the above 2 subsection shall be guilty of an offence and shall be sentenced to a fine of not less than P2 000 but not more than P5 000, or to imprisonment for a term of not less than three months but not more than six years, or both.

Does a parent have to pay maintenance if s/he is refused contact?

• Both parents of a child have a legal duty to maintain their child. It includes money for food, accommodation, clothing, medical care and education.
• It is the primary responsibility of parents to maintain their child. Even if the child is cared for by someone else, the mother and father both have a duty to maintain the child. If a child is adopted, the adoptive parents have a duty to maintain the child.
• A parent still has the legal duty to maintain his or her child whether a parent has a contact right or not.

May a court order in respect of contact be changed or cancelled?

• Yes, an application must be made at the Children’s Court/ Magistrates Court for the changing (variation) or cancellation of the court order (the Family and/or their attorney must be informed of this application).
• The court must be satisfied that the changing (variation) or cancellation of the court order will be in the best interests of the child.

What if a dispute exists between the parents in respect of contact?

• A dispute can be referred for mediation via a family meeting, a designated social worker or to the children’s court, if the mediation process fails.

What is adoption?

Adoption is the process where a person applies in court to become legally accepted as the parent of a child.

Who can adopt a child?

• A prospective parent must be at least twenty-five (25) years of age in order to proceed with the adoption of a child.
• A husband and his wife jointly.
• A widower or widow or unmarried or divorced person.
• A married person who is separated from his or her spouse by judicial decree.
• A child of sixteen (16) years of age can only be adopted by parents who are at least twenty-five (25) years older than that child.
• A married person whose spouse, as at the time of the adoption, has been suffering from mental illness for a continuous period of more than seven years immediately preceding that time.
• A person cannot adopt a child twenty-five (25) years younger than their own selves unless the child is of the same sex as the adoptive parent.
• As an exception to the above rules:
• A widow or widower or unmarried or divorced person may adopt his/her biological child who was previously adopted by any person under the Act, whether or not he or she is under the age of twenty-five (25) years or is less than twenty-five (25) years older than the child.
• A married couple may adopt a biological child of one of them even though they are under the age of twenty-five (25) years and the child is sixteen (16) years or more. The husband, however, must be at least fifteen (15) years older than the child of his wife and the wife must at be at least ten (10) years older than the child of the husband.

What is the process of adopting a child?

• The individuals and families interested in adopting children in Botswana must submit a written application to the Civil Registry at the Magistrate’s court.
• Adoption of a child is ordered by any magistrate court in the district in which the adopted child resides on the application of the adoptive parent(s).
• The application must be accompanied by a report of a social welfare officer which gives background information on all the affected parents and further confirms that the adoptive parents are qualified to adopt the child. This investigation and report by a social welfare officer can be requested at the Civil Registry at the Magistrate’s Court.
• At the Magistrate’s Court, applicants can submit their request papers and attach the required documentation (described below).

What documents are required?

• Potential parents must submit the following documentation at the Magistrate’s court:
• Certified copy of their National Identity Card (Omang),
• Certified copy of the birth certificate for the child being adopted,
• If the adoptive parents are married, a certified copy of the marriage certificate,
• Proof of income (e.g. current pay slip, contract),
• Assessment by a social welfare worker of the parents’ capabilities and home environment.

How long will this service take?

The adoption process can vary based on the time taken to complete applications and a social welfare officer visit.

How much does it cost?

A court fee of BWP 60.00 applies to processing adoption applications, whether successful or not.