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:-

1. Setting
   aside the decision of the 1st Respondent to cancel Applicant's bail
   as unjustified and baseless.

   
   

2. Reinstating
   Applicant's bail on the same conditions.

   
   

3. 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

1

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

2

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.

3

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

4

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

5