CRI/APN/359/2001 IN THE HIGH COURT OF LESOTHO
In the matter between:-
and THE DIRECTOR OF PUBLIC PROSECUTIONS
Delivered by the Honourable Mrs Acting Justice A.M.
Hlajoane on the 24th July, 2001
On the 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.
I first read all the papers for all the bails that I had
to consider that morning and later called all counsel whose files
me to come and move their Applications. I must have read
this Application out of context because I took this as an Application
bail on Robbery Charge. I was keeping a list of all cases that
I had dealt with.
The following week as I was going through the list of
cases that I had dealt with, I discovered that the Criminal
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
to secure me a copy of that Act.
After reading the relevant Section under that Act, Act
13 of 2000, Section 3(1) and (2) I came to realize that, in granting
Section 3(1) and (2) had to be read together with Section 15(1)
of the same Act.
I then instructed the Assistant Registrar to call before
me both Mr Phafane and Mr Semoko in order for them to come and
on the question why I could not revisit my decision in
having granted bail without having addressed my mind to the relevant
I did this by invoking the provisions of Section 45(1) (b) of
the High Court Rules Legal Notice 9 of 1980.
The Section reads; "The Court may, in addition to
any other powers it may have mero motu rescind or vary -
(b) An order or judgment in which there is an
ambiguity or a patent error or omission, but to the extent of such
I took it that there had been an error and an omission
in that I read the charge against the accused/applicant out of
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
supplied with sufficient information, which in this case
would be the provisions under the relevant Law, see Bolofo and Others
DPP C of A (CRI) No. 8 of 1996.
Mr Phafane contended that the order was not granted on
error as the facts were clear. He was asked to address Court on why
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.
On the question of determination of bail under the Act,
Section 15(1) which requires that the amount of bail "shall"
be less than half the value of the motor
vehicle, subject matter of the offence, the Crown showed
it had tried all that was possible in trying to get hold of the
had been released to the complainant in the criminal
charge but all in vain.
The 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.
The other 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
The Court came to the conclusion that to determine the
value of a motor vehicle, be it book value or market value, there has
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.
In the present case, the Court considered that, having
made the initial order in granting bail was not functus officio, C of
Review I of 1999 M.
Molapo v. DPP and Another in as far as the amount fixed
was concerned as it could not be said its desecretion was exercised
The offence under which the applicant was charged even
though the allegations displayed armed robbery, was in fact theft of
car under Act No. 13 of 2000 S. 3(I) and (2) read with
My brother, Mofolo J, had already granted bail to the
applicant's co-accused and fixed it at one thousand maloti (M1000)
I therefore alter the initial order to read, bail
granted at one thousand maloti (M1000.00) cash deposit, and other
remain the same.
A. M. HLAJOANE ACTING JUDGE
For Applicant: Mr S. PhafaneFor Crown: Mr
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