Litigation in Botswana
Botswana has a lot in common with Brooklyn, where I live. They have about the same population, a strong tradition of democratic government, and a judicial system administered in English that applies a legal tradition with some British roots. But there are some differences, too! And to learn about them, I was fortunate enough to speak with Mboki Chilisa, the managing partner of Collins Chilisa in Gaborone.
Why should you continue reading this post about litigation in Botswana?
You want to want to read about Bots and the law, but not about the BOTS law.
You’re interested in a nuanced appraisal of a country’s judicial system and the changing attitudes towards courtroom work over a lawyer’s career.
You want to know the rules for dress in Botswanan court.
Mboki Chilisa is the managing partner of Collins Chilisa in Gaborone. This interview has been lightly edited.
Can you tell me about the kinds of disputes you handle in your legal practice?
All kinds of disputes, from commercial, employment, contractual, and competition law disputes, to administrative law. Basically any type of dispute that can arise.
I don’t do family law related or criminal law matters.
What type of clients do you generally represent in disputes?
Really a combination: I represent banks, large corporations, trade unions, and handle property transactions for individuals. I work with real estate agents. It’s a mix.
Besides Microsoft Office, what software do you use in your practice?
We use Excel and we use Powerpoint. We use Pastel for accounting. We use Quickbooks, and MS Outlook for email, and Excalibur for debt collection. We do billing the old traditional way by making notes of your hours.
What books and websites do you use for legal research?
For legal research, we use all kinds of textbooks, depending the subject area. We have law reports and, in terms of websites, we subscribe to JUTA, a world renowned publisher of texts in Southern Africa, and that gives us law reports and textbooks. We use the hard copies as well as online versions.
Image credit: https://commons.wikimedia.org/wiki/File:Gaborone,_Botswana_High_Court.jpg
I understand that Botswana has a dual legal system, incorporating customary law and civil law. How do those systems work in commercial disputes in Botswana?
The way that customary law works, it applies to people who live in tribal communities where the value of claim is usually very small. So when you deal with commercial disputes, the amount at stake is higher and so civil law applies.
Do practitioners cite cases from courts outside of Botswana?
We cite more South African cases than local cases because we share a lot of the same traditions.
There is Roman Dutch common law, which is the tradition that applies in South Africa, based on the Dutch who settled in 1652, and based on English settlers in the 1800s. Botswana in 1895 was a protectorate of Britain, so the law that then applied in the Cape Colony at the time was that law.
But since South Africa is very big, we borrow heavily from their case law rather than from our own, since we are much smaller economy.
Botswana is a civil law country, but we still apply the doctrine of binding precedent in our legal system, but there are a lot of qualifications.
Both English and Setswana are spoken in Botswana. Do court proceedings only take place in English or do they take place in Setswana as well?
The language of the courts is English, so if you don’t understand English, you can get court proceedings translated into any language you are comfortable with, but the court must be addressed in English. Only in the customary courts may Setsawana be used.
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
Botswana is not yet at the point of filing electronically, but there is talk of facilitating that in the future. Currently everything is hand delivered, which is tedious and results in too much paperwork.
Does Botswana have specialized courts that only hear commercial cases?
No, but there is talk of going that route. At the moment, we have a specialized court that only hears employment disputes and we have tribunals that only hear procurement disputes. And one that only hears competition law disputes. There is also a tax tribunal. But no superior courts that only hear commercial disputes.
I understand that Botswana has a small claims court where lawyers are forbidden. How do these courts work without lawyers to help clients?
The idea with small claims court is to firstly to try the disputes as fast as possible and as little formality as possible. Lawyers have a knack for raising procedural issues and causing delays, and the idea with excluding them is to avoid legal technicalities and deal with substance. Small claims is specifically to deal with claims of very little value and it wouldn’t make much sense to come heavily lawyered to try to fend off a small claim. Economically it does make sense.
Who decides the facts in a commercial case? Is it a judge or a jury?
We don’t have a jury system, so the judge sits alone, and he decides the facts. The only time the judge receives assistance for the facts is in the labor courts where he sits with two assessors. Besides that, the judge decides the facts himself.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
In terms our system of civil procedure, cases are divided into either action or those initiated by motion procedure.
In motion procedure, you must outline your case by way of affidavit and those tend to be quite extensive since that’s the entirety of your case.
But by an action, the idea is that the matter will be dealt with by way of trial, so the pleadings tend to be short, since you will give oral evidence to substantiate your claim. When they are by motion, they are extensive. By way of action, leading to trial, they are quite short, maybe 5-10 pages.
Generally speaking, how long does it take for a case to go from complaint to judgment?
That can take as much as three or four years because there is a lot of backlog at the high court our superior court of first instance. It takes awhile to even get a trial date and there is a lot of concern about that.
Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?
You don’t get to interview the other party’s witnesses before the trial, but there is discovery where you exchange documents that are relevant to the dispute. Documents that will be used must be disclosed and, if the case is criminal, the accused is entitled to witness statements that were previously given by would be given.
If you win, does the other side reimburse your attorneys’ fees?
Yes, generally the rule is that the losing party bears the costs. But in some courts, that principle doesn’t apply. Like at the labor court, where you only get a costs if you acted frivolously or deliberately delayed the proceedings or acted vexatiously, because they try to encourage people to come to court so the idea is one shouldn’t get penalized for coming to court. But in other courts the loser pays the successful party.
Are the courts open to the public? Can ordinary people watch a commercial trial?
Yes, as a general rule. Proceedings are open to the public, it’s a constitutional requirement justice must be seen being done.
Do you believe that Botswanan courts have a particular strength for resolving commercial disputes?
Yes. The courts are independent and it is important for anyone to know that if you have a dispute, it will be adjudicated by a forum that is totally independent
How about a weakness?
It has weaknesses, such as the time it takes to reach finality. There is a lot of inefficiency in the process and commercial disputes take too long. There is now a preference for commercial disputes to go to arbitration so you don’t need to wait for four years for finality. If a dispute is important for a business, four years is too much time to wait for it to be resolved.
Also, the quality of judges has gone down over the years for several reasons. With the population going up and the size of the economy increasing, there is a need for more judges. They used to be appointed among the best judicial practitioners, but since there are more judges needed, the quality has gone down and there are more young people who don’t have the right ethos or the right zeal, who see it as more of a job than as a calling. In the past it was seen as giving back to society rather than just employment. As a result, you get people on the bench who do not apply themselves. And as they are overwhelmed the quality goes down.
How often do you go to the courthouse?
As I have more lawyers around me, I go a lot less, since I find it less exciting. Early in one’s career, going to court and making creative arguments is more exciting. Now I go once every two months, whereas in the past I was there regularly but now I try to do as little court work as I can.
When you are there, do you need to wear a special robe or wig?
In terms of practice tradition and court procedure, you need to put on a white shirt with a white bib and a black jacket, black pants, or dress or skirt, and a black gown on top of the jacket, and you have to wear black shoes. But in practice, people don’t follow the shoes rule since no one can see the shoes since a bar separates the judge from lawyers.