Botswana Laws

Civil

1Breach of Contract

Where a party has not complied with a material term of the agreement it is said that they are in breach of that contract. The person whose rights have been breached under an agreement may have the following remedies:

Damages - If the breach leads to the innocent party suffering damages, then they can sue for such damages. The damages must not be due to the fault of the innocent party.

Cancellation and Restitution – If the breach leads to the innocent party suffering damages, then they can sue for such damages. The damages must not be due to the fault of the innocent party.

Specific Performance – An innocent party may make an application to require the party in breach to comply with the agreement.

Defamation of Character – In brief, the unlawful, intentional publication of a statement intended to injure the reputation of another. Cases for defamation must be taken to court within 1 year of the incident.

Note that defamation is a criminal offence in Botswana and may be reported to the Botswana Police Service.

Labour

1Unfair Dismissal

In a claim for unfair dismissal the complainant must prove that there was either Procedural unfairness or Substantive unfairness for their case to be successful.

Procedural Fairness – It is a legal right for every employee to be afforded a fair hearing before an impartial body and before a decision is taken for their dismissal. The proper procedure to be followed is :

  1. The employee who faces discipline must be given reasonable notice of the time and place the employer intends holding a disciplinary enquiry;
  2. The employee must be informed of the nature of the charge(s) against him or her;
  3. The employee must be given the option of being assisted or represented at the enquiry by a co-employee of his or her choice, or union representativie where applicable. although it is not usual for an employee to be legally represented or represented by a union official and she or he cannot insist upon it;
  4. The employer should place sufficient and reasonable evidence before the enquiry to prove that the alleged misconduct has been committed by the person charged;
  5. The employee is entitled to question any witness who testifies against him or her. However, failure to do so will not necessarily result in the proceedings being invalid;
  6. The employee must be entitled to give evidence personally and call his or her own witnesses;
  7. In the event of being found guilty , the employee must be given an opportunity to put forward facts in mitigation before a sentence is decided on;
  8. After a sentence has been imposed, the employee should be informed of his right to appeal against the decision and/or sentence; and

Substantive Fairness – This relates to the reason for terminating an employee's contract of employment. There must be a fair or valid reason for the employer to dismiss an employee.

Family

1Divorce

For divorce, the parties must ordinarily have been married for at least 2 years And the marriage must have broken down irretrievably. In proving irretrievable breakdown of marriage a party wishing to divorce must satisfy one of the following :

Adultery, it must be proved that the spouse has been in an adulterous relationship with a third party.

Unreasonable Behavior, it must be proved that the spouse has been in an adulterous relationship with a third party.

Adultery, it must be proved that the spouse has behaved so unreasonably that the other finds it intolerable for them to continue living as husband and wife.

Living apart, it must be proved that the parties having been living apart for a continuous period of not less than two (2) years and the other party consents to the divorce.

Desertion, it must be proved that the other spouse hasleft the matrimonial home and that a continuous period of not less than two (2) year. Note that all divorces will also resolve dissolving and sharing of the joint estate including property and debts where parties are married in community of property.

2Custody

Refers to rights parent(s) have over their child such as right to physical possession, control of the child’s education, determination of his religion, consent to medical treatment, right to discipline the child and to administer their property. The Courts in granting custody only consider what is in the best interest of the child and the factors that assist are as follows:

List section 6(1) Children’s Act

The suitability of the parents;

  • The desirability of keeping siblings together;
  • The availability of the parent to provide day to day care;
  • The desirability of ensuring stability and security in the lives of young children;
  • The availability of the parent to provide for the children's emotional, psychological, cultural and environmental development;
  • The suitability or otherwise of the children's existing environment, having regard to maintaining the status quo;
  • Custody of children of tender age should be given to the mother;
  • Custody of a son should be given to the father and that of a daughter to its mother;
  • Custody should not be given to an immoral parent;
  • Wishes of the child may be taken into account;
  • A child's existing associations and environment should not be lightly disturbed; and
  • Material advantage of one parent should not be a consideration.
  • Usually the Court appoints a Social Worker to make an enquiry into these factors and make a report on their findings
3Child Maintenance

It is every child’s right to be supported by their biological parents until they attain the age of majority (18 years), or becomes self-supporting or as stated in court order. The child will be supported by both parents within the limits of their financial resources, hence, a party ordered to pay maintenance may always apply for variation of maintenance order which is determined by looking at their means (income) and expenses.

4Adoption

Section 6 Adoption Act (also f.s sigweni uct) the legal process by which the parental rights of a child’s natural parents are extinguished and replaced by a set of legal relations between that child and his adoptive parents. An application is to be made to the Magistrates Court in the district in which the child to be adopted resides. The Court considers the best interest of the child. must satisfy itself by evidence that:

  • The applicant(s) is qualified to adopt
  • The applicant(s) is of good reputation and have the means to maintain and educate the child
  • The adoption will be conducive to the welfare of the child
  • The requisite consent to the adoption has been given

Criminal

1Criminal Law

Is a system of laws concerned with punishment of individuals who commit crimes. A criminal prosecution involves the government (through the Police Service or the Director of Public Prosecutions (DPP)) deciding to either punish an individual for either an act or an omission. Criminal offences are set out in various laws including the Penal Code [CAP 08:01], Corruption and Economic crimes Act, Chlidren’s Act, Traffic Offences Act ( of the laws of Botswana.

2Charge Sheet

When a person is facing a criminal charge the first step is to be issued with a charge sheet which notifies him of the relevant clause he has infringed together with the particulars of the offence leading to the charge.

Arraignment

1Mention / Roll Call

Appearance at court by parties, in a pending court case mainly before the trial or hearing and regarding updates.

2Pre-Trial Conference

Appearance in court by parties, in a pending case, for purposes of preparing trial.