The average layperson, when asked what the most frustrating aspect of dealing with a civil suit in Botswana is, will more often than not, cite delays in obtaining a result as the most vexing facet. Our laws do however recognize that delays can at times be avoided, and in two instances provide procedures to avoid such delays, namely;
1. when the defendant has not filed a defense, and the plaintiff subsequently applies for default judgment; or
2. where the Defendant enters appearance to defend the matter, but the plaintiff is of the opinion that Defendant has no valid defense, and thus applies for summary judgment
A default judgment may be granted where a plaintiff applies to the Registrar of a court for a default judgment following the outright failure by the defendant to defend or even attempt to defend an action brought against him/her.
As per order 30 of the High Court Rules, one may apply for a judgment in default of appearance in the following instances: for monetary terms for a specified amount or an amount easily ascertainable with interest; for damages in an amount to be determined by the court; for a return of goods in the possession of a defendant to a plaintiff or a monetary equivalent; and when one seeks to recover possession of land currently occupied by a defendant or defendants in a matter.
On the other hand, a plaintiff may apply for summary judgment where a spurious or no real defence has been entered by a defendant. A summary judgement is a court order ruling that no “real” defence has been given by the defendant, and that the defence submitted is merely to delay court proceedings or the award of a judgment against a defendant. In such an instance an action can, be decided without the matter requiring a fully-fledged trial.
Order 34 of the High Court Rules dictates that one may launch an application for summary judgment on each claim as outlined on the writ of summons if such claims are: based on a liquid document; for a liquidated amount in money (i.e., the sums owed are concrete or easily ascertainable); for delivery of specified movable property; or for ejectment, together with any claim for interest and costs.
Summary judgments are founded upon a motion by the Plaintiff in which he/she contends that the Defendant has no valid defence to the claim, or that a defence is submitted simply to impede proceedings and consequently, that he is entitled to the claims he seeks. The motion is accompanied by a declaration and an affidavit swearing positively to the facts contained in the declaration. The summary judgment procedure is meant to give a plaintiff with an unanswerable or unassailable case, speedy judgment against a defendant who does not have a defence, but merely enters appearance to defend in order to hinder the plaintiff.
The General Commercial Litigation and Recoveries department of Akheel Jinabhai and Associates (in association with Mckee Commercial Law) headed by Partner Pusetso Olsen, has the expertise and skills to assist in this respect.