Category: Legal Updates

Could you imagine a situation where you had a legitimate claim and there was nothing you could do about it? Yes, you advanced P1 000 000.00 (One Million Pula) to a close friend and yes, you were cautious and actually put it all in writing. But now you cannot approach the courts for recourse despite default. Why? Your claim prescribed.

What is prescription?

Botswana Law recognizes two types of prescription which are Extinctive Prescription and Acquisitive Prescription.

Acquisitive Prescription relates to acquisition of ownership of another person’s immovable or movable property by reason of possessing such property for a period of 30 years, or use of a servitude in respect of immovable property continuously for the same period.

Extinctive Prescription refers to the rendering unenforceable of a right by lapse of time.

This begs the question, what amount of time should have lapsed for one’s right to no longer be enforceable? In Botswana, Section 4 of the Prescription Act provides the different periods of extinctive prescription depending on the circumstances. For example, except for the State/Government, 1 year period is provided in respect of an action for defamation, 3 years period in respect of oral contracts and remuneration for services rendered whereas written contracts can be executed within 6 years. Where two or more periods of prescription may be applied to one cause of action, the longest period shall be the prescription period.

The notion behind prescription is to ensure that a person with rights does not “rest on their laurels”, but rather exercises such rights within a timely manner. So, to avoid your rights becoming unenforceable and losing that money and possibly the friendship, forever, be sure to approach Court or your trusted Attorneys for advice within a reasonable time.

More often than not, Landlords make one of the most potentially expensive mistakes when it comes to evicting a tenant who refuses and/or neglects to vacate the property despite breach on the tenant’s part. They resort to self-help eviction and omit to cancel the lease agreement altogether.

One believes well, it’s my property therefore, I should be able to lock it up, remove the tenant’s belongs, cut utilities or use other intimidating endeavours to force the tenant to vacate the property. Wrong! By leasing property to a tenant, a landlord essentially gives the tenant rights in such property and of course obligations. However, despite the obligations, the law does not allow a landlord to remove a tenant forcefully or arbitrarily from the property. The rights bestowed on a tenant can only be legally extinguished through filing an Application for eviction with the Courts and obtaining a proper Court Order. A landlord must cancel or withdraw any right or consent given to the tenant or occupier before commencing with the eviction.

A person may be evicted from a property if s/he is considered to be an unlawful occupier. This includes a person staying on the property without the consent of the landlord, in this case a properly cancelled lease and/or a squatter. When the lease agreement expires or is cancelled by the landlord, as a result of the tenant’s breach (such as not paying rent, damaging the property etc), the tenant will be considered to be an unlawful occupier. The only legal way to remove such a person from your property is by approaching Court for an Eviction Order.

Self-help eviction is illegal and could expose you to civil liability by the tenant.