Saturday, May 15, 2021

Court mulls lawfulness of civil imprisonment

In a landmark case in which the Leader of the Opposition, Duma Boko, is making a guest appearance as a “friend of the court”, the Gaborone High Court will put civil imprisonment under a judicial microscope.

 

This action has been prompted by three separate but similar cases in which the First National Bank Botswana and Bank Gaborone are suing customers who have defaulted on loan repayment. Even after being ordered to repay such debt by the High Court, the customers failed to do so triggering the next natural application ÔÇô attachment of their property. However, that still proved problematic because the defaulters had no property to be attached. The matter currently before Justice Dr. Zein Kebonang is one in which the banks have made separate applications for the civil imprisonment of the defaulters.

 

Section 23 of the High Court Act provides guidance on this particular issue. According to this provision, “no writ of civil imprisonment for non-payment or non-satisfaction of any judgement or decree shall be granted or issued by the court in cases in which the defendant or any other party against whom such writ of civil imprisonment is sought to be issued proves to the satisfactory of the court that he or the other party against whom such writ is sought has no property or means sufficient to satisfy in whole or in part the said judgement or decree.” The court establishes the truthfulness of defendants’ claim through close questioning.

 

Kebonang has directed that the matters be consolidated because they are similar in every respect and when the case resumes on September 25, he will hear pro and con arguments from the lawyers. The judge has also directed that well before that date, the lawyers should share their court papers with Boko who will study such papers and file his brief. As a friend of the court (amicus curiae), Boko is not a party to the action but will render an independent legal analysis for consideration by the court. Prior to joining politics, the Umbrella for Democratic Change leader taught law at the University of Botswana and in court, stated that the legal analysis of the matter was within his professional competence as a human rights and constitutional lawyer.  

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