2384 Batswana imprisoned for failure to pay debts
Minister Shamukani laments growth trajectory of civil imprisonment
The numbers of judgement debtors are increasing and are caused by among others, a rise in unemployment, lack of financial literacy, and increased cost of living.
Minister of Justice Machana Shamukuni told Parliament that civil imprisonment is part of our law and is provided for under the High Court Act and the Magistrates Courts Act.
There are 227 Batswana who have been put under civil imprisonment for failure to pay debts in Selibe Phikwe Prisons since 2016 while 2384 Batswana have been put under civil imprisonment since April 2018 across the country.
“I should first state that the above Acts were passed by the legislature in exercise of its powers for the good governance of the people of this country. Section 23 of the High Court Act provides that: “No writ of civil imprisonment for non- payment or non- satisfaction of any judgment 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 satisfaction 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 judgment or decree.” Our law gives the judge or magistrate power to assess and determine whether an order of civil imprisonment should be issued against a debtor or not,” he said.
According to the Minister the law further provides that such an order of civil imprisonment shall not be granted against a judgment debtor where the Court is satisfied that the judgment debtor has no property or means sufficient to satisfy in whole or in part the said judgment or decree.
Further, this section by implication means that only if the person against whom the writ is granted or issued has property or means to satisfy the judgment in whole or part, but chooses not to do so, the writ of civil imprisonment would be proper and permissible, he told Parliament.
Shamukuni who is also Member of Parliament for Chobe stated that it must be noted that the responsibility lies with the judgment debtor to appear in court and show forth their circumstances and or reason why an order of personal attachment should not be issued against them.
The Minister explained that the defendant or judgment debtor is given a chance to tell the court of his/ her circumstances, if for example he is retrenched or abrupt loss of employment, he/ she should inform the Court of such. This is due process and the Court will make a decision looking at each particular case on its own merits.
“The court may or may not grant the civil imprisonment order ( Order 53, rule 1( 1) of the High Court Rules). There is no policy consideration so far to change this position of the law.
“Civil imprisonment is a means of obliging an unwilling judgment debtor to comply with their obligations to pay, it is not unjust, illegal or unreasonable. It is the law of our country as provided for in our Constitution Section 5 as follows: “5( 1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say, in execution of the order of court made to secure the fulfilment of any obligation imposed on him by law.”
Shamukuni explained that the Court of Appeal has affirmed in numerous cases that civil imprisonment is part of our law, that it is not discriminatory and not ultra vires to the Constitution.
He was responding to a question from Leader of Opposition also MP for SelibePhikwe West Dithapelo Keorapetse who asked the Minister of Justice to update Parliament on the number of Batswana who have been put under civil imprisonment for failure to pay debts in Selibe Phikwe Prisons since 2016.
Keorapetse further asked the Minister to state and explain: the number of all Batswana who have been put under civil imprisonment since April 2018 across the country; whether the numbers are going up or down and to explain the phenomenon; whether there is justice in imprisoning Batswana who cannot sincerely honour their financial obligations due to circumstances beyond their control like abrupt unemployment, poverty and/ or sudden destitution; and whether there is consideration of policy intervention to ameliorate the situation, for instance outlawing civil imprisonment for genuine failure to pay debts.