HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS Applicant and
JOHANNES ENSLIN Respondents
STEPHANUS ANDREAS REDELINGHUYS Respondents
by the Hon. Mr. Justice Sir Peter Allan on the 16th day of September,
an application by the Crown for estreatment of bail.
no copy of the charge sheet on the file but it appears that the
accused/first respondent was charged with various offences
assault and theft. He is a resident of Meyerton, R.S.A, On 24 July
1987 he appeared before the High Court for a bail
application. He was
represented by Mr. Redel inghuys, the second respondent. Mr.
Mdhluli for the Crown opposed the application.
accused was granted cash bail in the sum of M5.000 with: one surety
in the sum of M500. He deposited his passport and was supposed
report daily to the Maseru Charge Office. For some reason his
counsel, Mr. Redelinghuys stood as his surety.
accused made regular reports until 6 August and then he jumped bail
and went home to South Africa; hence this application now
his cash bail.
file in the bail application (CRI/APN/177/87) does not contain a copy
of the recognizance which was supposed to have been
signed by the
accused and his surety. Apparently this was because none was signed,
although a receipt (no. 778144 of 24 July 1987)
was issued for
payment of the cash bail. The accused should not have been allowed to
go without signing the recognizance. However,
he paid the cash bail
and he knew the terms of his release for he obeyed them at first.
Then he broke the agreement and consequently
his bail must now be
regard to the second respondent, I am rather at a loss to know why
he, as counsel for the accused, was ever allowed or requested
stand as a surety. In my opinion this is irregular. In fact it is of
such a rare occurrence that I have been able to find only
relevant South African and one English authority. Both are old ones.
The English case was R. v Scott Jervis (1876)Q.B.D. (unreported),
which the judge held that it was. "inexpedient" for a
solicitor to stand bail for his client. In R. v Booi 1932 C.P.D.
Gardiner J.P. expressed his surprise. He said, "it seems to me
to be a novel thing for Counsel to stand bail for an accused
It was held to be undesirable. I entirely agree.
certain categories of persons who cannot be allowed to stand bail for
accused persons for what should be obvious reasons.
police officers, court officials and judicial staff and also counsel.
They are all not only too closely involved
in court matters but it
inappropriate for them to be placed in a position where a court might
have to take action against them because an accused person
bail or misbehaved in some other way.
Redelinghuys stated in this Court that he did not offer to become a
surety but that he was requested to do so and he complied,I
say, with respect, that if this was so then it was inadvisable.
oversight in the Registry he was not required to sign a bond. He has,
however, honoured his undertaking and has tendered the
M500 to the
Court. Mr. Mdluli for the Crown has stated that the Crown is not
asking for a forfeiture order with regard to
I do not
consider that it is necessary to make such an order because, apart
from the impropriety of allowing counsel to become a
surety, I do not
see what control he could have exercised over the accused, especially
as counsel had apparently not offered himself
as a surety in the
first place. I do not find that there was any failure of duty on his
this application is granted to the extent that it is ordered that the
cash bail of M5,000 deposited by the accused/first
respondent is now
to be estreated, and a warrant for his arrest is to issue.
offered by the second respondent, if it has been paid into Court, is
to be refunded to him.
P. A. P.
Mdhluli for the Crown
Redelinghuys in person
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