Head of the Administration of Justice – Registrar and Master of the High Court – Michael Motlhabi, who holds the position of Sheriff has blacklisted and removed from practice several deputy sheriffs. In a public notice warning against engaging the services of the blacklisted deputy sheriffs late last month, Motlhabi said they are not eligible to carry out the responsibilities of a Deputy Sheriff for various reasons. The delisted deputy sheriffs had either failed to provide a requisite bond and did not submit identity numbers or they do not have contracts with the AoJ. Motlhabi said only Deputy Sheriffs issued with valid identity cards and bonds are eligible to discharge the functions and duties of that office. "Members of the public are further advised not to enlist the services of the listed Deputy Sheriffs and if already engaged to seek the services of the other Deputy Sheriffs not stated on this list," reads part of the statement published in Government social media page BWGovernment. Records seen by The Patriot on Sunday, point to a difficult working relationship between Deputy Sheriffs and their supervisor – the Sheriff, which in 2014 forced the Administration of Justice to undertake a nationwide public education campaign to sensitise citizens on their operations and conduct. In recognition of the need to monitor and supervise their operations the Administration of Justice has established a separate and composite unit exclusively dealing with Deputy Sheriffs issues. This unit operates along the lines of the office of the Master of the High Court, which is responsible for performing the distinct functions of the Registrar and the other role as a Master. The unit was established to carry out the Registrar’s third key role, that of the Sheriff handling all issues that relate to the responsibilities of the Sheriff.
Worried about its public image, the AoJ resolved that: "Without a fully-fledged and separate unit dealing with Deputy Sheriffs and accompanying structures including strengthened Rules of the Courts regulating the operations of the Deputy Sheriffs office, it may not be possible to win the confidence of public and convince it that we have the capacity to effectively manage post litigation processes, especially enforcement of Orders emanating from our Courts". The plan for the public education campaign was to use government media platforms for an initial period of six (6) months to address who Deputy Sheriffs are, who supervises them, how they are appointed, whether they are also debt collectors or what distinguishes them from other Auctioneers, which rules and laws regulate their operations, how they can be identified as well as what they are expected to and conduct themselves as they execute different aspects of their mandate. "The Administration of Justice may after six (6) months wish to reflect on the effectiveness and impact of the programme offerings especially the extent to which the public had become more sensitised about Deputy Sheriffs and their operations. The desired outcome of the review exercise will amongst others be to identify the gaps if any, assess impact, assess completeness, invite feedback from stakeholders and public with the view to fill up those gaps and make the necessary adjustments and improvements before engaging on the next lag of the campaign using other platforms," reads part of the Directive.
Among several other complaints The Patriot on Sunday has seen correspondence between the Ombudsman and the Registrar dating as far back as 2013 raising grievances about the conduct of some Deputy Sheriffs. In one incident in Francistown, which the Registrar described in the savingram of 06 June 2013 as “highly regrettable”, a Deputy Sheriff proceeded to execute the Order of the Court by attaching and selling properties which the Defendant had clearly pointed out as not belonging to him and therefore not executable in the enforcement of the Order of the Court against him. “There is little that the Sheriff can at this stage do to restore the parties to the position they were in prior to the sale. Please note that a Deputy Sheriff who attaches and sells by auction properties which have clearly identified as not those of the Judgment Debtor and therefore executable in satisfaction of a Court Order is acting unlawfully. Whilst acknowledging that the actions of the Deputy Sheriff bordered on misconduct we take note that a period of three (3) years has since elapsed from the date of the sale, we wish to advise that the complainant is at liberty to exercise his right and seek justice by instituting civil proceedings against the Deputy Sheriff for an appropriate relief,” the Registrar advised.
Sheriffs VS Auctioneers
It has also emerged that commercial banks have been acting illegally and compounding problems for Deputy Sheriffs. Private auctioneers, who had previously enjoyed lucrative contracts from commercial banks, suffered a major setback in 2014 when the Sheriff of High Court ordered that they are not qualified to enforce court orders. In a stern warning to commercial banks, (one of the Directives addressed to management at First National Bank of Botswana, dated 24th March 2014), the then acting Registrar Master and Sheriff Michael Motlhabi warned that private auctioneers are not officers of the court and it is not their mandate to enforce orders of the court. The Sheriff ordered cooperation in adhering to the Directive for the sake of unobstructed service delivery by Deputy Sheriffs. He wrote: “It has recently come to the attention of the office of the Sheriff and Master of the High Court, who is also the Sheriff that some commercial banks were developing a trend of indiscriminately engaging and imposing private auctioneers and their companies on Deputy Sheriffs in the enforcement of Court Orders. It has further been observed that some of these Auctioneers have not only at your behest as Judgement Creditors run parallel and simultaneous publication of the auction sale but have gone further to market such on the social media pages using promotion advertising language which is not consistent with how Deputy Sheriffs are to ethically conduct their mandate in the enforcement of Court Orders. Please note that Deputy Sheriffs whilst allowed to operate independently in the execution of their official duties, they are appointees of the Sheriff and officers of the Court whose conduct is provided for and regulated by the Rules of both the High Court and Magistrate Courts.
“Please note further that Deputy Sheriffs in the execution of their mandate they do so as officers of the court and not as agents of the Judgement Creditor or those of the Judgment Debtor. It is to this end totally inappropriate, irregular and unacceptable for Auctioneers to be imposed on Deputy Sheriffs and to issue separate conditions of sale which stipulate in some instances an additional commission of 7.5% of the sale price over and above the 2.5% prescribed by Order 52 of the Rules of the High Court as claimable by the Deputy Sheriff for executing the writ.
“In terms of the Rules of the High Court whilst there is nothing prohibiting the engagement of Auctioneers by the Deputy Sheriff or the Judgment Creditor it must be understood that in such circumstances the Auctioneer’s rights and mandate cannot exceed that which is provided or extended to the Deputy Sheriff under the Rules of the High Court. An Auctioneer therefore cannot issue separate conditions of sale which contravene that which is provided for by the Rules and cause such to govern the sale in execution, bind the buyer including the claim for 7.5% commission charged separately from the Deputy Sheriff commission of 2.5%. “Premised on the above where an Auctioneer is involved he must act under the direction and instruction of the Deputy Sheriff since he is neither an appointee of the Sheriff nor derive his mandate from the Rules to enforce orders of the Court. You are in the light of the foregoing directed to desist from appointing private Auctioneers to take over the enforcement of the Orders of the Court, including their conditions of sale to which Deputy Sheriffs are in any event not a part of. Where an Auctioneer is involved his claim must be deducted from the 2.5% commission due and payable to the Deputy Sheriff who has been instructed”.