HIGH COURT OF LESOTHO
DIRECTOR OF PUBLIC PROSECUTIONS
by the Honourable Mrs Acting Justice A.M. Hlajoane on the 24th July,
12th July, 2001 Mr Phafane appeared before me and moved this
application for bail. Mr Semoko was for Crown. There were also many
other bail applications that were moved that day other than this one.
read all the papers for all the bails that I had to consider that
morning and later called all counsel whose files were before me to
come and move their Applications. I must have read this Application
out of context because I took this as an Application for bail on
Robbery Charge. I was keeping a list of all cases that. I had dealt
following week as I was going through the list of cases that I had
dealt with, I discovered that the Criminal Application referred to
above in fact dealt with Motor Vehicle Act of 2000 copy of which I
did not have. I had to send my secretary to Government Printing to
secure me a copy of that Act.
reading the relevant Section under that Act, Act 13 of 2000, Section
3(1) and (2) I came to realize that, in granting bail, Section 3(1)
and (2) had to be read together with Section 15(1) of the same Act.
instructed the Assistant Registrar to call before me both Mr Phafane
and Mr Semoko in order for them to come and address me on the
question why I could not revisit my decision in having granted bail
without having addressed my mind to the relevant Law. I did this by
invoking the provisions of Section 45(1) (b) of the High Court Rules
Legal Notice 9 of 1980.
Section reads; "The Court may, in addition to any other powers
it may have mero motu rescind or vary –
order or judgment in which there is an ambiguity or a patent error or
omission, but to the extent of such ambiguity, error or omission;"
I took it
that there had been an error and an omission in that I read the
charge against the accused/applicant out of context. The Court could
therefore not be considered to have exercised its discretion
judicially in granting bail and fixing the amount at only two hundred
and fifty maloti (M250.00) cash deposit. For the Court to have
exercised a judicial discretion, it ought to have been supplied with
sufficient information, which in this case would be the provisions
under the relevant Law, see Bolofo and Others vs DPP C of A (CRI) No.
8 of 1996.
Phafane contended that the order was not granted on error as the
facts were clear. He was asked to address Court on why he had chosen
to bring the application before the High Court yet the offence was
bailable at the Magistrate's Court. The Court felt, the matter could
only have been placed before it either on appeal or review. Mr
Phafane showed that the High Court with its unlimited jurisdiction
was not barred from dealing with matters falling within the
jurisdiction of the Subordinate Courts.
question of determination of bail under the Act, Section 15(1) which
requires that the amount of bail "shall" not be less than
half the value of the motor
subject matter of the offence, the Crown showed it had tried all that
was possible in trying to get hold of the vehicle which had been
released to the complainant in the criminal charge but all in vain.
question that remained to be answered was, who actually had to
determine the value of the vehicle? Surely both the Police as
investigators and the Crown cannot be considered to be competent to
exercise such powers under the Act.
issue would be whether for purposes of determining the value of the
vehicle, it had to be physically seen, or the blue card would
suffice? Would it be the market value or the book value?
came to the conclusion that to determine the value of a motor
vehicle, be it book value or market value, there has to be an expert
evidence to that effect in order to assist and guide the Court in the
determination of the amount of bail to be imposed.
present case, the Court considered that, having made the initial
order in granting bail was not functus officio, C of A (CRI) Review I
of 1999 M.
DPP and Another in as far as the amount fixed was concerned as it
could not be said its desecretion was exercised judicially. The
offence under which the applicant was charged even though the
allegations displayed armed robbery, was in fact theft of a motor car
under Act No. 13 of 2000 S. 3(I) and (2) read with Section 15(I)
brother, Mofolo J, had already granted bail to the applicant's
co-accused and fixed it at one thousand maloti (M1000) cash deposit.
I therefore alter the initial order to read, bail granted at one
thousand maloti (M1000.00) cash deposit, and other conditions will
remain the same.
Applicant: Mr S. Phafane
Crown: Mr Semoko
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