CRI/APN/348/2005
IN THE HIGH COURT OF LESOTHO
In the Matter Between:
THIBANG SELLO APPLICANT
And
THE LEARNED MAGISTRATE
MOKHOTLONG 1st RESPONDENT
THE DIRECTOR OF PUBLIC
PROSECUTIONS 2nd RESPONDENT
RULING
Delivered by the Honourable Madam Justice N Majara on the 14th July 2005
Applicant herein made an application before this court for an order in the following terms:-
Setting aside the decision of the 1st Respondent to cancel Applicant's bail as unjustified and baseless.
Reinstating Applicant's bail on the same conditions.
Further and/or alternative relief.
On the 11th July, 2005, Mr Molapo, Counsel for Applicant and Mr Mokorosi, Counsel for the Crown on behalf of Mr
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Habasisa were before the court. Mr Mokorosi informed the court that he had been informed that the crown intends to oppose the application and he asked for and was granted the court's indulgence to postpone the matter to the 14th July, 2005 so that he would call a witness from Mokhotlong to come and formally oppose the application.
However, on the agreed date, there was no appearance on behalf of the Crown despite the court having directed the Registrar to arrange that they be called three times within the court premises. The court then proceeded to hear arguments from Mr Molapo, Counsel for applicant. Having heard Mr Molapo I granted the application as prayed and promised that I would give my full reasons thereof at a later stage. I now proceed to give those reasons.
In his founding affidavit, applicant averred that he got arrested by the Mokhotlong Police on the allegation that he had not been attending remands contrary to the conditions that the Court had imposed on him when granting him bail in
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CRI/APN/109/97. It was applicant's case that he was not guilty of breaching any bail conditions in as much as there was no condition that obliged him to attend remands. He attached Annexure TS 1 as proof of his case.
Upon scrutiny of the said Annexure TS 1 which is a copy of the court order I found that indeed as applicant averred and as Mr Molapo submitted on his behalf, the Magistrate who granted accused bail did not specifically order that he should attend remands as one of his bail conditions. However, it was on the basis of this court order that applicant herein was arrested and his bail cancelled for the reason that he had not been attending remands.
Whilst attending remands is almost invariably one of the standard conditions of bail, accused persons cannot in all fairness be expected to assume that such a condition is necessarily attached if this was not specifically spelled out. This is especially the case where such an accused is not represented and/or unfamiliar with court procedures.
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Attendance of remands is inter alia, meant for purposes of ensuring that an accused person reports himself periodically before a court of law as some guarantee that he has not yet absconded and intends to attend his trial to its finality, as well as to inform him about the progress of the case that is pending against him. However, it is very important that this particular condition and indeed any other be stipulated and communicated to an accused person. Where this has not been done and the court which granted bail realizes at a later stage that such an omission has occurred, it is only fair that the accused be summoned to come before the court so that the mistake can be rectified. Even if a warrant of arrest is issued, it is my opinion that under these circumstances it should be only for purposes of securing his attendance so that variation and/or additions may be made.
For these reasons, I believe that the Magistrate was wrong to cancel the applicant's bail under these particular circumstances. I therefore ordered that the applicant's bail be
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reinstated on the same conditions as before. I also directed that as a further condition to his bail, he should attend remands regularly until his trial is finalized.
N MAJARA
JUDGE
For Applicant : Mr Molapo
For Respondent : Mr Habasisa
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