CRI/A/111/83

IN THE HIGH COURT OF LESOTHO

In the matter of:

KOLEKILE SIMON NGATWENI - Appellant

v
REX - Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice M. P. Mofokeng on the
19th day of December, 1983

The proceedings before me are persuant to section 108(a)
of the Criminal Procedure and Evidence Act 1981 against the refusal
by the
Magistrate of the Subordinate Court, Maseru to release the
appellant on bail pending his trial.

It would appear that on the 5th December, 1983 the
appellant appeared before the Subordinate aforesaid charged with
contravening Section
90(1) of the Road Traffic and Transport Act No.8
of 1981 in that he operated a motor vehicle (fully described in the
charge-sheet)
recklessly or negligently upon a public road and in the
process collided with a pedestrian.

Appellant, personally applied for bail which was
refused. It had been mentioned and it was not

disputed that he was a foreigner. The Court was also

/informed ....

-2-

informed that the pedestrian involved -in the accident
was in a critical condition. However, the applicant was advised by
the learned
presiding magistrate, to "renew his bail
application" on 20th December 1983 to which date the matter was
postponed. That
date has not arrived.

On the 6th December 1983 i.e. the following day,
Advocate Ramahlodi appeared in the same Court and made an application
for bail. The
advocate suggested a number of conditions to which the
applicant could be ordered to adhere as also a surety and the amount
payable.
It was repeated that the appellant was a foreigner. The
prosecution did not oppose the application. However, the learned
magistrate
regarded this application by advocate Ramahlodi as a
direct challenge to her previous ruling because she simply gave this
ruling:

"The defence must note an appeal if it feels
aggrieved about the order made on 5th December, 1983 regarding the
ball application."

It is this ruling which has given rise to the present
appeal.

An accused is entitled to make application for ball
until sentence is pronounced. In fact the learned magistrate
recognised this fundamental
right of an accused person, by advising
him to renew his application for ball at a later stage. What happened
when advocate Ramahlodi
appeared in Court the following day on behalf
of the accused was merely to exercise that right and not

to challenge the ruling that the learned magistrate made
which

/was not

-3-

was not an absolute refusal and of which the appellant
was aggrieved and was therefore appealable in terms of section 108(a)
of the
Criminal Procedure & Evidence

Act (supra). The appeal is against his second refusal.

It does not seem to me that the learned magistrate
inquired what conditions could be imposed to make certain that the
appellant would
consider it more advantageous to himself to stand his
trial rather than to abscond and estreat bail. (See R v du
Plessis. 1957(4) S.A. 463(W). On the other hand there is fear
that there is a danger of the accused absconding to a neighbouring
country
with which there exists no extradition treaty and in such
circumstances the application for bail will be refused. (R v
Grigoriou. 1953(1) 3.A. 479(T)). The fact that the prosecution
did not oppose the application is neither here nor there as it is the
discretion
of the presiding judicial officer which matters. It is
the interest of justice and the liberty of the subject which are at
stake
and must be carefully balanced.

It is contended in the first ground of appeal that the
learned magistrate erred in holding that the applicant is not a
citizen of
Lesotho. Well, this information came from the applicant
himself that he was a foreigner. It

thus became common cause.

It was also contended that the learned magistrate had
erred in refusing bail because of the critical condition of the
victim. It were
far better if this information came to court by some
formal way even if it is by an affidavit because such information may
mean either
liberation or incaseratlon. The learned magistrate upon

/receipt

-4-

receipt of such information is guided by the provision
of section 103 of the Criminal Procedure and Evidence (supra). She,
therefore,
did not err in the application of that section.

The other grounds have been dealt with in the cause of
the judgment.

The appellant did not satisfy the Court a quo
that if given bail he would return and stand his trial and not
abscond and this fear was aggravated by the fact that the appellant
is a foreigner who lives in the Republic of South Africa, a country
with which there exists no extradition treaty. In the premises
it
has not been shown that the learned magistrate has exercised her
discretion capriciously.

The appeal is dismissed.

JUDGE. 19th December, 1983.

For
the Appellant : Adv. Ramahlodi

For
the Respondent : Adv. Bosiu