September 2022 - The Law Raven

5 FREE LEGAL SERVICES THAT WILL SAVE YOU COSTS IN 2023

In an effort to ensure that everyone, even those with little or no means, have equal access to justice, the State has created a number of platforms on which people can engage and resolve disputes at no cost.

All these services have 3 things in common;

a. They have ready–made forms which are easy to fill out at designated locations;

b. They are designed to speed up dispute resolution;

c. Courts relax the rules so that the set up is informal and less intimidating to the parties.

These legal services are

a) Restraining order in cases of harassment, stalking, physical abuse, emotional abuse, economic abuse and damage to property;
b) Child maintenance;
c) Debt collection of up to BWP40, 000.00;
d) Spousal support;
e) Labour disputes.

For each service or relief that you need, there is a procedure in place to help you get that. Each process comes with a certain amount of paperwork and some personal details that you should provide. This article focuses on 5 legal services that are offered for free by the Botswana Government to help you exercise your rights even without legal representation.

1. RESTRAINING ORDERS
You can get a restraining order at the Magistrate Court nearer to where you reside in Botswana. You should carry a copy of your identity document and make sure that you have some details about the person against whom you seek a restraining order. Usually, a restraining order can be obtained within seven (7) days after you file your application. The court dispatches a messenger/deputy sheriff or police officer to serve the documents on the other party so you do not have to meet with them to serve them with the papers. Once you have a restraining order, it is easier to engage the police to intervene or assist whenever you need them to. Such applications are treated as urgent because your life may be under threat so every court responds speedily to the applications.

2. CHILD MAINTENANCE
There`s a specialized court at every Magistrate court for assisting with all child maintenance complaints. All you have to do is go to the nearest Magistrate Court and fill out a complaint form. Make sure to have a copy of your national identity card and have the personal details of the father or mother of your child, such details include their full names, residence and place of work.

3. DEBT COLLECTION
Every Magistrate court has a division tasked with dealing with debt claims of up to BWP40, 000.00. These claims are not just confined to debt collection but they extend to claims for refunds following the supply of defective goods valued at no more than BWP40, 000.00. All you have to do is approach the Magistrate court, see the small claims court staff and ask for help to kick-start your case. They have forms for you to fill out and file a claim. There are no costs attached to filing such a claim. You simply have to have information about the other party and some documentary proof of the debt such as proof of payment or messages exchanged between the parties. You have to be able to prove at the case hearing that your version of the story is more believable than the other person. It is always important to have a record of the loans you give out so that your case will stand on solid ground. The good thing about the small claims court is that Attorneys are not allowed to represent any of the parties. This levels the playing field and that`s what makes it less intimidating.

4. SPOUSAL SUPPORT/MAINTENANCE
Botswana law allows deserted Wives and Husbands to claim for support after they have been deserted by their spouse without means of support. This relief is limited to spouses only because when people are married, by law they owe each other a duty of support so it is on that basis that you should approach the court for an order directing that your spouse to pay maintenance and to help meet your basic needs. This relief is not a permanent solution, it is meant to sustain the struggling spouse while they try and find their feet. Each case depends on the circumstances so some orders may be for a longer period than others. For assistance with this type of relief, visit the nearest Magistrate court and file your claim.
5. LABOUR DISPUTES
Every dispute arising from an employer-employee relationship usually winds up at the Industrial Court. Before any case can proceed to that level, the aggrieved party, usually the employee has to file a complaint at the Labour office within 30 days after the deadline for payment has lapsed. That is to say, if your employer was supposed to have paid you your benefits by a certain date and they fail to do so, approach the labour office and seek help with your claim. The system is designed to help you along at every stage until the case is resolved. At the labour office, a mediator is assigned to your case to help you and your employer/ employee settle the dispute without going to court. If the mediation fails, the case is referred to the Industrial court.

The Industrial Court is also very accommodating of Applicants, the atmosphere is more relaxed and the paperwork is easy to fill out. Court employees are tasked to assist every Applicant with the paperwork. The best thing about the industrial court is that even if you are not successful in your claim, you will not be ordered to pay the legal costs of the successful party. This protects the employee especially against being discouraged or any intimidation that prevents them from freely exercising their rights.
All of these free legal services could save you a lot of debt in legal fees if you are patient enough to follow the set procedures. Bear in mind that laws keep changing therefore there may be some changes in the procedures set by the time you decide to make use of such services.

All of these free legal services could save you a lot of debt in legal fees if you are patient enough to follow the set procedures. Bear in mind that laws keep changing therefore there may be some changes in the procedures set by the time you decide to make use of such services.

FREQUENTLY ASKED QUESTIONS: CLARITY & CLOSUREPart 1

By Nsi J. Pabalinga 0 Comments

A lot of you have asked me a number of questions following my post on child maintenance and support. Most of them are more or less the same so I thought it best to offer some clarity and hopefully some of you may get closure from that answer.

1. Can I sue my father for the years of neglect I endured as a child and for unpaid/arrear maintenance?

Think of maintenance as an operating expense (costs that keep the business running). In other words, maintenance is the sum of costs that cover the care and upkeep of the child day to day.

It is a duty that a parent owes to their child and if they are not supportive, the other supporting parent should sue on behalf of the child and if the child is under the guardianship (care) of an aunt, grandmother or some other person, that person should sue for child support for as long as there are expenses to be paid. Suing for maintenance means the supporting parent is demanding a refund of their previous and ongoing expenses because instead of only contributing half the costs, the supporting parent is forced to cover 100% of the care and upkeep of the child.

More to the point, maintenance cannot be sued for after 21 years because it will be impossible to quantify your monthly needs since you were a child, mostly because you did not know how much it cost to raise you. Only your other parent or your guardian actually knew at the time. For that reason, maintenance must be claimed while the child is still growing and in need of it. In short the answer is NO. You cannot claim maintenance as an adult for what you were denied over a period of at least 20 years.

On a side note, the underlying issue to this question is neglect and the question of why cannot be answered at law. But perhaps one may find closure after undergoing counselling just to come to terms with the pain. I would be doing you wrong if I did not make it clear that not all problems can be solved by the law or courts of law.

2. Can I remove/replace the name of the biological father of my child on the birth certificate?

A father`s name is placed on the birth certificate for 2 reasons. He fathered that child or he adopted that child as his. As long as the child`s biological father is alive, he CANNOT, for any reason be removed from the child`s birth register. Even if he is neglectful, a criminal or any negative character you may assign to him, he has a right to be on the record. The same way, DNA cannot be erased from a person; a biological father CANNOT be removed.

There are those who have been able to register their spouses as biological parents of their children (without adoption consent) and this is a result of loopholes that used to be there in our system and that was before DNA test results became a requirement for adding the name of a father to a birth register. A case like that is not the rule, it is a loophole that can be challenged and changed anytime.

Adoption of a child requires that both parents give their written consent. The only time a step parent can be added to the birth register of a child to replace that of the biological father is only when the biological father has written consent giving away his/her right to another person. The effect of that change is that the biological parent is exempted from paying maintenance.

I hope this nugget irons out the kinks and solves the puzzle for some of you who have been wondering. Look out for more nuggets next week.

THINGS YOU NEED TO KNOW BEFORE BUYING ESTATE LAND IN BOTSWANA

By Nsi J. Pabalinga 0 Comments

An Estate is a legal term for the combined assets, property and finances of an individual at any point in time, alive or dead. In this context we are referring to the assets of someone who has passed on. We refer to that person as the deceased.

A number of actions take place after someone has died, one of those is that the family gathers to decide how to deal with the debts/liabilities and assets of the deceased person. These are decisions that address the question of who gets what. If any person approaches you to offer to sell to you a property that is still registered in the names of a deceased person, you need to ask them some very important questions before making a final decision to enter into any agreement with them.

1. Find out if the Deceased had a Last Will and Testament.

If the deceased person had a Will then you need to see the Final Liquidation and Distribution Account. This is a document detailing who inherited which asset. It helps you be aware if the person selling you the property has inherited it the proper way. This way you avoid having other beneficiaries claiming a share in the property at a later stage.

2. If the Deceased did not have a Will then Customary Law usually applies and as a potential buyer, the seller needs to show you the following documents;

A signed family resolution stating that the seller is the nominated beneficiary of the property of the Deceased, the plot number must be stated. There must be at least 3 witness signatories must provide copies of Omang or Passport.
A confirmation letter from the Chief in the locality where the deceased used to live. The letter should confirm the nominated beneficiary and the plot number of the property inherited.
If the beneficiary has siblings or other potential beneficiaries. All the siblings or beneficiaries should write affidavits renouncing any claim to that property and you should have copies their identity documents (certified copies of Omang or Passport) on your records.
See the Original Title Deed. The absence of an original title deed could mean the property has a mortgage bond and it may be held at the bank as security for a loan.
Conduct a site visit to satisfy yourself that it is what you want and if the property has tenants, ensure that the Seller makes arrangements to introduce you as the new owner before you make a final payment or have the Seller put them on notice (eviction) before you finalize the transaction
3. Once you have all these documents, it becomes less difficult to transfer the property.

4. Make it a habit to pay in two (2) installments if all the paperwork has not been compiled. It is important to ensure that your final payment leaves you with all the documents that you need to secure the Title.

5. Have your attorney (Conveyancer) check your paperwork before you pay the final amount.

6. Do not succumb to the pressure of paying the full purchase price until you are satisfied that your transfer papers are in order.

A number of actions take place after someone has died, one of those is that the family gathers to decide how to deal with the debts/liabilities and assets of the deceased person. These are decisions that address the question of who gets what. If any person approaches you to offer to sell to you a property that is still registered in the names of a deceased person, you need to ask them some very important questions before making a final decision to enter into any agreement with them.

1. Find out if the Deceased had a Last Will and Testament.

If the deceased person had a Will then you need to see the Final Liquidation and Distribution Account. This is a document detailing who inherited which asset. It helps you be aware if the person selling you the property has inherited it the proper way. This way you avoid having other beneficiaries claiming a share in the property at a later stage.

2. If the Deceased did not have a Will then Customary Law usually applies and as a potential buyer, the seller needs to show you the following documents;

v A signed family resolution stating that the seller is the nominated beneficiary of the property of the Deceased, the plot number must be stated. There must be at least 3 witness signatories must provide copies of Omang or Passport.

v If the beneficiary has siblings or other potential beneficiaries. All the siblings or beneficiaries should write affidavits renouncing any claim to that property and you should have copies their identity documents (certified copies of Omang or Passport) on your records.

v See the Original Title Deed. The absence of an original title deed could mean the property has a mortgage bond and it may be held at the bank as security for a loan.

v Conduct a site visit to satisfy yourself that it is what you want and if the property has tenants, ensure that the Seller makes arrangements to introduce you as the new owner before you make a final payment or have the Seller put them on notice (eviction) before you finalize the transaction.

3. Once you have all these documents, it is becomes less difficult to transfer the property.

5. Have your attorney (Conveyancer) check your paperwork before you pay the final amount.

6. Do not succumb to the pressure of paying the full purchase price until you are satisfied that your transfer papers are in order.

BEFORE YOU MARRY AND SIGN FORM A Or B

By Nsi J. Pabalinga 0 Comments

The institution of marriage is considered sacred and our laws strive to protect it as much as possible. Our laws also allow each person to decide the most suitable way to manage their assets. Most people prefer community of property because of Faith based convictions and some simply because it’s a choice that gives them peace to share with their life partners.

In a country where step parenting is significantly common it cannot be denied that matrimonial property forms the subject of many disputes concerning inheritance and divorce settlements which can stretch for years at times!

In a country where the divorce rate is very high, and where people take financial risks in a personal capacity, there is no doubt that the choice to marry in or out of community of property demands level-headed thinking not an emotional analysis.

While it is a general belief that a marriage in community of property is proof of true love, perhaps it is time to put the two choices under a legal microscope and allow each person can draw their own conclusion on what might work for them.

Legal Consequences of marriage in community of property:

1. The most common reason in support of marriage in community would appear to be centered on the “two becoming one” in every sense possible. Ideally, this is the best choice for people who only have children born in the marriage because what they work hard for and accomplish, they bestow on their heirs/children without reservations.

2. Like the phrase suggests, when people marry it is not just two people joining to become one unit, they unite assets and liabilities (debts) for richer and for poorer (as vows go). In other words, the house you own can be attached and sold to settle your spouse`s debts even if the debt dates back to before the marriage because what is his is yours and vice-versa.

3. For those who are self-employed (running under a business name, street vendor or hawkers licence), every time you take a financial risk you put the matrimonial property at risk too because creditors are legally entitled to attach personal assets for the settlement of a debt. Only individuals who run their business in the form of companies are able to separate business and family property in the event of a lawsuit related to their business risks. This is because in law, a company is a “person” too; we call it a juristic person. It can sue or be sued on its own.

4. Community of property means financial commitments (loans) and the sale of property (land) cannot be done without the consent of the other spouse. For spouses who may not be on speaking terms on or are on a self imposed marital separation, your hands are tied until the other parent gives their consent.

5. If you have a child who was born from a previous relationship (whether a previous marriage or just a relationship), plan to secure that child`s inheritance because it is usually the stepchild or child born outside the marriage who suffers most when matters of inheritance arise. If you cannot donate property to them (either because you do not have any at the time or you are already married so it is not possible), consider creating a savings account for them. It offers future financial security at least.

In fact, if you have more than one child outside the marriage then marriage in COP is a luxury you simply can’t afford. Kids born outside marriage usually have no one speaking for them or pushing their interests ahead because half the time they wind up in a dispute with your spouse over inheritance.

Legal Consequences of Marriage out of Community of Property:

A marriage out of community of property can best be described as killing 2 birds with one stone. This is because; in truth nothing is ever black and white in a marriage relationship. Some projects are bound to be jointly done by a couple and such joint projects are usually treated as community of property assets. To put it more simply, even in a marriage out of COP, there are some assets or properties that will be treated a joint property.

1. When you marry out of COP, any property you owned before the marriage remains exclusively yours. Any property exclusively acquired during the marriage is also yours alone too. However, if you bought it, built it or invested in it together then its joint property.

2. Here you can take financial risks without risking your spouse`s assets. For those financial risk takers who absolutely trust their spouses, you can register some assets in the names of your spouse to keep family assets secure while you risk losing the ones in your names in the event your risk does not pay off.

3. You have the freedom to control who inherits what under this system. Inheritance can be conditional, for example, you can stipulate (in your will) that whatever your child inherits should never form part of their matrimonial property in the event the child gets married, nothing wrong with that condition. This ensures that valuable/sentimental family assets are not lost to their spouse in the event of a divorce.

4. Overall, marriage out of COP is the only way to enjoy the best of both worlds. A couple can begin on a blank page at the time of the marriage because property owned before the marriage remains exclusively owned and controlled. If a couple wants to build something together during the marriage that too is fine because it is then considered as a shared possession.

In conclusion, this post is not meant to discourage one property regime in favour of the other but it is meant to help you make an informed decision prior to getting married.

WHY PEOPLE LOSE CASES?

By Nsi J. Pabalinga 0 Comments

The legal profession runs on specific timelines, after all, it is the business of selling time. The State is often a party in civil and criminal matters. Therefore in order to guard against continuous lawsuits, there are some laws that exist to ensure that neither the state nor private citizens find themselves entangled in cases based on very old incidents. This is because public officers are always moving from employer to employer, department to department and in the process records are lost, potential witnesses become unavailable and with time facts are forgotten so even their evidence may be compromised. The simplest reason may well be that no one should have something hanging over their heads for too long, be it the state or a private citizen, closure is important.

The time bars geared at protecting state as well as the private citizen can either be referred to as STATUTORY LIMITATIONS or EXCTINCTIVE PRESCRIPTION depending on the context. Big words but both phrases loosely translated mean “you are out of time”. Note that the time limits apply both ways, to the Suing party and the party being sued.

Anyone dealing with the government understands that getting results can stretch over months or years! By the time you decide to take action, it is often too late. Even if you have a strong case, it will not matter. Your time is up, cut your losses and move on.

Different state entities have differing statutory limitations. This article will help you appreciate the time limits that apply on some of them.

LOCAL AUTHORITIES

This includes Land Boards and the City Council. You are entitled to sue them within 2 years from the moment your right to claim arises. If you wait longer than that, your claim will be dismissed! There is no hope for you after that. If you know you waited too long the smart thing to do is to keep following them up at their offices for as long as it takes to get your dues. I repeat, there is no point in suing after the lapse of 2 years.

BOTSWANA UNIFIED REVENUE SERVICES

There are 3 time bars under this one;

A suit for recovery of taxes and duties should be made within 15 years, either by you or against you. If you have been charged with a customs offence, the BURS should sue you within 5 years or their right to sue expires. Your claim against the Commissioner General or a customs officer under the Customs Act lapses after 1 year.

MOTOR VEHICLE ACCIDENT FUND

Your right to claim expires 3 years after the vehicle accident. Keep your eye on the clock whenever your claim is not addressed on time.

GOVERNMENT LOANS

If the government loaned you some money, usually for tertiary education or for post graduate studies, they have a right to sue for repayment before the lapse of 15 years. For example, people who benefited from government sponsorship and graduated over 15 years ago can no longer be sued for repayment of their loans. The state waited too long to sue them.

DIRECTOR OF PUBLIC PROSECTUTIONS

All criminal offences have an expiry date except for a charge of murder. If the state fails to prosecute within 20 years, it loses the right to bring an action against you. The above statutory limitations are absolute; there are no exceptions at all. The prescriptive time limits discussed below are general rules and for every general rule, there is an exception. The exceptions will not be covered in this article.

TIME LIMITS BETWEEN LITIGANTS SALE OF DEFECTIVE GOODS

You have 1 year to sue or be sued for this type of claim.

VERBAL CONTRACTS, RENT, GOODS SUPPLIED

You have 3 years to sue or be sued under these civil wrongs. WRITTEN CONTRACTS EXCEPT MORTGAGE BONDS Your right to sue or be sued under a written contract expires after 6 years The list goes on but the foregoing are the most common reasons why people take each other to court. That being said, bear these issues in mind and you will avoid losing cases over minor (avoidable) technicalities.

ON A SIDE NOTE…

All court judgments are valid and enforceable for a period of 30 years. In particular, judgements for payment of money or for specific performance remain valid for that long. In other words, if you win a case against someone, even if you wait 10 years to pursue payment, it is still valid. This may be helpful for someone whose debtor has fallen on hard times at the time of judgment; you can still bide your time until their circumstances improve for the better then claim your payment. The right to sue or be sued over a mortgage bond expires after 30 years.

5 FREE LEGAL SERVICES THAT WILL SAVE YOU COSTS IN 2023

FREQUENTLY ASKED QUESTIONS: CLARITY & CLOSUREPart 1

THINGS YOU NEED TO KNOW BEFORE BUYING ESTATE LAND IN BOTSWANA

BEFORE YOU MARRY AND SIGN FORM A Or B

WHY PEOPLE LOSE CASES?

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