DEPUTY SHERIFFS PUT ON THE LEASH: Botswana’s Bold Move To Rein Them In—Part 2

In this follow-up to the first part of this two-part series, we look at how Deputy Sheriffs’ operations are set to significantly change with the Deputy Sheriffs Act, 2024, which aims to comprehensively regulate their role in Botswana. 

3. DEPUTY SHERIFFS (EXECUTION) REGULATIONS

Where Order 52 of the Rules of the High Court offered general procedural guidance, these Regulations, issued under Section 64 of the Deputy Sheriffs Act, provide a clear, binding legal framework. Below are the most notable changes, with references to the specific regulations:

3.1. Legal Authority & Structure (Reg 2 & Form 1)
The Regulations are legally binding, unlike the High Court Rules. They follow structured steps and forms for execution.

3.2. Executing Movable and Incorporeal Property (Reg 3 (1–5))
Movables must be demanded, inventoried, and secured. Incorporeal property, such as leases, shares, or bills, must be attached via notice and document seizure.

3.3. Execution Against Immovables
Immovable property may only be attached after movables are exhausted. Notice must be served on the owner, occupier, and Registrar of Deeds.

3.4. Sale Conditions & Preferent Creditors (Reg 4(5))
Conditions of sale are prepared by the execution creditor using Form 3. Preferent creditors must be notified and may stipulate a reserve price.

3.5. Advertising & Auction Transparency (Reg 4(6), 6(3))
Sales must be advertised in two newspapers and the Government Gazette at least 14 court days before the auction. A record of the top four bids must be kept.

3.6. Handling Purchaser Default (Reg 6(5))
Defaulting buyers may face cancellation, resale, and liability for losses. Property may be offered to the next highest bidder or re-auctioned.

3.7. Returns of Sale & Reporting (Reg 7(1))
Deputy Sheriffs must file a return of sale within seven court days, including items sold and unsold, prices realized, and buyer details.

3.8. Distribution of Proceeds & Surplus (Reg 7(2–3))
Writs lodged before the sale are ranked pro rata. A distribution plan must be filed, and any surplus returned to the debtor.

3.9. Cost Disputes and Oversight (Reg 7(4))
A full cost breakdown must be given to the debtor, who may challenge it before the taxing master.

4. DEPUTY SHERIFFS (PROCEDURE FOR CIVIL IMPRISONMENT) REGULATIONS (2025)

Civil imprisonment still exists in Botswana; however, it now has a legal structure, clear safeguards, and judicial control. These Regulations are provided for under Section 64 of the Deputy Sheriffs Act (2024). The following are the key structures of these regulations:

4.1. Clear Legal Trigger for Imprisonment (Reg 3(1))
Imprisonment may only be pursued after a nulla bona return (no property to satisfy the writ). This prevents premature or unjust detention.

4.2. Mandatory Summons & Court Appearance (Reg 3(2–3))
Before a debtor can be imprisoned, they must be formally summoned to appear before a judge and explain why they have not paid. This ensures the debtor has notice, a voice, and the right to be heard.

4.3. Judicial Inquiry, Not Automatic Orders (Reg 4(1–3))
The court must conduct an inquiry into the debtor’s financial position, considering the ability to pay, refusal, or other factors before making an order. Imprisonment is no longer granted as a formality—judicial discretion is required.

4.4. Maximum Imprisonment Period (Reg 4(4))
Where imprisonment is ordered, it is capped at 30 days, reinforcing that it is a temporary enforcement mechanism, not a sentence.

4.5. Structured Installment Plans (Regs 5–6)
Debtors may apply to pay the debt in installments, subject to court approval. If they default, imprisonment can resume, but only through a further court process. This offers realistic repayment options and avoids unnecessary incarceration.

4.6. Debtor’s Right to Seek Release (Reg 7)
A debtor already imprisoned may apply to a judge for release if the debt has been paid, the creditor consents, or good cause exists. This replaces the prior power of the Registrar and ensures release decisions are made judicially.

4.7. Protection Against Misuse
Overall, Deputy Sheriffs cannot enforce civil imprisonment without following the procedure laid out in the Regulations. Imprisonment requires judicial approval, a formal summons, and a hearing.

CONCLUSION

The regulation of Deputy Sheriffs in Botswana has been transformed. With the Deputy Sheriffs Act, 2024 and its three supporting Regulations, the role is now defined by law, not just court rules.

These reforms introduce statutory authority and registration requirements; clear procedures for execution and civil imprisonment; financial safeguards through the Fidelity Fund and trust accounts; and strong judicial oversight to protect both debtors and creditors.

Deputy Sheriffs are no longer loosely guided by tradition—they are now bound by law, accountable to it, and equipped to enforce justice within a modern legal framework.