Peo Legal

Newsflash: Serving court documents

November 8, 2022 By Peo Legal

Order 8 of the Rules of High Court deals with effecting service of court documents. Service of a court documents is the process of making sure that any person who is required to be given a copy of an application, summons or any document filed with court is given it in a way which complies with order 8 of the Rules of High Court. The first important rule relates to the requirements of giving
notice of the originating process.

Who can serve?

Any adult who has no interest in the cause and is able to explain its nature and contents.
No interest: someone who does not stand to benefit.
Adult: someone over the age of 16 years.

What time can court documents be served?

Order 8 rule (1) states that unless in cases of arrest; writs of summons, petitions, orders, pleadings and any other documents shall not be served on a Sunday, and between 7pm and 7am of any day.

Personal Service order 8 rule 2 (1)

How is personal service effected?
An originating process is required to be served personally on the respondents or defendants named in the originating documents. This can be done by leaving a copy of the document with the person or if the person does not accept the copy by putting the copy down in the person’s presence and telling the person the nature of the document. Even people in prison should be served personally.

Personal service on a corporation/ company
Personal service of a document on a corporation is affected;
– By personally serving the document on a principal officer of the corporation.
– Delivery of a copy to a responsible employee at its registered office or its principal place of business with the jurisdiction or
– By affixing a copy at the main door of such office or place of business.

Instances where personal service is not effective
Personal service that has been effected by an interest party in a matrimonial proceedings or proceedings involving custody. This was illustrated in the case of Mmereki Poloko v Ephenia and another.

The information contained in this newsflash was intended for our clients and correct to the best of the author’s knowledge at the time of publication. Before making any decision or taking any action, please consult us, at info@peolegal.co.bw or +267 3975779.

Newsflash: Magistrates’ Court Amendment Act (2022)

October 20, 2022 By Peo Legal

Prior to this amendment, the position was that neither of the ranks of Magistrates had jurisdiction over civil matters where the claim exceeded P40 000 nor the jurisdiction to give criminal sentences that exceed 15 years or give fines above P 40 000. However, the making or passing of the new Magistrates’ Court (Amendment) Act No.22 of 2022, has brought increments to the monetary value of the civil matters of different ranks of Magistrates can determine and further to the maximum sentences or fines they may give.

Regional and Chief Magistrates have been awarded the power to determine civil claims where the total amount claimed or the land in dispute is not higher than P 100 000. Further, they may give criminal sentences that are not longer than 20 years imprisonment and fines which are not higher than P100 000. Principal Magistrates on the other hand have been permitted to determine civil matters where the claim or land dispute is not higher than P80 000.

Senior Magistrates may now determine civil matters where a claim that involves money or land in dispute is no greater than P70 000 and further, they may impose criminal sentences not higher than 12 years or fines above P70 000. The first, second and third ranks of Magistrates have jurisdiction over civil matters which do not exceed P60 000, P50 000, and P40 000 respectively. Further, they may give criminal sentences which do not exceed 10 years, 7 years, and 5 years respectively.

The above changes mean that civil and criminal matters that fall within the scope of the Magistrates Court as per the new law, no longer have to be referred to High Court.

Newsflash: Tobacco Control Act No 19. of 2021

November 11, 2021 By Peo Legal

The Tobacco Control Act No. 19 of 2021 (The Act) will be the primary tobacco control law in Botswana. The Act was passed on October 2021 however, it has not commenced yet. The Act repeals the Control of Smoking Act (Cap 65:04). The Act keeps pace with global tobacco control recommendations and provides for effective regulation of new tobacco products.

The Act governs several aspects of tobacco control including but not limited to licencing, the ban of smoking in public areas or enclosed areas, a ban of retailers displaying cigarettes and prohibition of sale to or by persons of the age of 21.

NOTABLE PROVISIONS

Tobacco Control Committee

The Act establishes the Tobacco Control Committee which will provide oversight in the implementation of the provisions of the Act.

Licensing

The Act provides for four types of licences namely: –

tobacco manufacturing licence;
tobacco importing licence;
tobacco exporting licence; and
tobacco sales licence.

No sale of tobacco or any tobacco products will be permitted without a licence. The licence shall be valid for a period of 1 (one) year from the date of issue. Furthermore, it will be an offence to purchase any tobacco or tobacco product from an unlicensed vendor. The Act provides for the following sanctions:

a manufacturer who sells any tobacco product without a licence will be liable to a fine of BWP750 000 or to imprisonment for a term not exceeding a period of 4 (four) years or to both;
a wholesaler, importer or exporter who sells any tobacco product without a licence will be liable to a fine of not more than BWP5000.00, or to imprisonment for a term not exceeding a period of 6(six) months or to both;
a person who buys tobacco products will be liable to a fine not exceeding BWP2000, or to imprisonment for a term not exceeding 5(five) months or to both.

In addition to the fines and imprisonment, the Tobacco Control Committee may seize or destroy any tobacco or tobacco products sold or manufactured without a licence.

Minimum package size for smoked tobacco products

A manufacturer will not be allowed to distribute or sell any smoked tobacco product unless the tobacco product is contained in a sealed unit packet of at-least 20 sticks.

Sale Restrictions to Persons Under the Age of 21

Persons under the age of 21 will not be allowed to sell or buy cigarettes.

Prohibition of Tobacco Display

Shops and stores will not be allowed to display any tobacco products, including at a point of sale. Any person who contravenes this provision will be liable to a fine not exceeding BWP 1000 000.00 or imprisonment to a term not exceeding 10 (ten) years.

Newsflash: Retrenchment Post The State Of Emergency

September 20, 2021 By Peo Legal

In terms of regulation 30E of the Covid-19 Regulations 1 (the Regulation), the retrenchment of employees during the state of emergency is prohibited. The State of Emergency is set to end on 30 September 2021 and therefore the prohibition against retrenchment will be lifted. Employers will be able to commence the retrenchment process in terms of Section 25 of the Employment Act 2 (the Act).

For a retrenchment process to be lawful it must satisfy both procedural and substantive fairness.

Substantive fairness speaks to the commercial or business justification for the retrenchment. In order for an employer to commence the retrenchment process there must be a commercial or business justification for the retrenchment. In the case of Innocent Chinu and 13 others v Pelican Moving Company, the Industrial Court held that “there is no distinction between operational requirements for purposes if making profit and for the purposes of ensuring survival of a business”. Though the employer has the managerial prerogative to economise its business, this prerogative must be exercised fairly 3 . Substantive fairness requires that:

there must be a valid commercial rationale or justification for the retrenchment. If it turns out that the real reason was to victimise them then the commercial rationale for retrenchment does not exist;
employees must, in good time, be given relevant information in order for them to understand the reasons why their company is considering retrenchment; and
the employer must consider ways to avoid retrenchment or minimise its effects. The employer must show that all other alternative steps to prevent retrenchment or limit its scope have been duly considered and implemented.

Procedural fairness relates to the procedure followed by the employer prior to retrenching an employee. Procedural fairness requires that 4 :

a) once the employer forms the intention to retrench employees he shall immediately give written notice of that intention to the Commissioner of Labour and every employee who will or is likely to be directly affected by the retrenchment;

b) the employer must undertake consultations with the employees or union. Consultation must be done in good faith and not simply to afford the employee an opportunity to comment on a decision that has already been taken. The principal purpose of the consultations is threefold 5 :-

for the parties to seek ways of avoiding or averting the need to terminate the employee’s employment;
if the retrenchment proves unavoidable, the parties should consult on a fair
selection criterion and a retrenchment policy to be applied; and
to consult on ways of alleviating the hardships of retrenchment e.g a reasonable severance package and possible alternative employment opportunities within the business.

c) in terminating employment contracts, the employer, wherever reasonably practicable, must comply with the principle of first-in-last-out. In applying this principle the employer must take into account the need for the efficient operation of the company and the ability, experience, skill and qualifications of each employee concerned. Therefore a more skilled employee who recently joined the company may be retained due to the company’s requirements and a longer serving employee who is less skilled may be retrenched;

d) if within six months after retrenchment, the employer seeks to employ workers for occupations which were the subject of the retrenchment, the employer must give priority to the retrenched employees to such extent as it is reasonably practicable. Failure on the part of the employer to observe either procedural fairness or substantive fairness, or both, may invalidate the retrenchment.

Failure on the part of the employer to observe either procedural fairness or substantive fairness, or both, may invalidate the retrenchment.

Should you require any assistance with Employment Law and terminations, please feel free to contact us at info@peolegal.co.bw or +267 3975779.

Can an employer terminate an employee on 14 days’ notice during a probationary period?

August 10, 2021 By Peo Legal

In terms of the Employment Act [Cap 47:01] (the Act), an employee may be employed on a probationary basis. The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment. The probationary period should be determined in advance and must be of reasonable duration, determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment. In the event the employer considers the employee’s performance deficient, the employer may, subject to Section 20 (2) of the Act, terminate the employee’s contract of employment during the probationary period.

Section 20(2) of the Act provides that where a contract of employment is terminated during a probationary period “by either the employer or employee under section 18 or 19 by not less than 14 days’ notice, the contract shall be deemed, for the purposes of this Part, to have been terminated with just cause and neither the employer nor the employee shall be required to give any reasons therefore”

In reconciling section 20 (2) of the Act with section 18 or 19 of the Act which provide for termination aligned to the period within which an employee is paid a wage, the Industrial Court in the case of Diau v Botswana Building Society held that “…s 20(2) does not however suggests that any employee on probation should be given notice of 14 days. If he or she is a monthly paid employee he or she is entitled to a one month’s notice.” The effect of section 20 (2) is not to circumvent sections 18 and 19 of the Act, but to create a minimum threshold in the event that section 18 and 19 provide for a lesser notice period than 14 days. The court in Mosedame held that the conclusion that only 14 days’ notice is required when terminating a contract of employment during a probationary period is incorrect. The notice period applicable during a probationary period is determined by reading section 20 (2) together with sections 18 and 19 of the Act. Therefore, in practice section 20 (2) of the Act as read with section 18 of the Act means the following:

An employee who is paid daily wages or weekly shall be terminated on at least 14 days’ notice during a probationary period.
An employee who is paid every two weeks or monthly must be given at least 14 days or one month’s notice respectively during a probationary period.

The above notice periods will be sufficient for both sections 18 and 20 (2) of the Act as they are “not less than 14 days’ notice“. It is important to remember that the 14 days’ notice period is a minimum threshold and not in addition to the notice period one would have been entitled to.

Should you require any assistance with Employment Law and employment contracts, please feel free to contact us on info@peolegal.co.bw or +267 3975779.

The information contained in this newsflash was intended for our clients and correct to the best of the authors knowledge at the time of publication. Before making any decision or taking any action, you should consult the contacts listed here