HIGH COURT OF LESOTHO
SIMON NGATWENI Appellant
by the Hon. Mr. Justice M. P. Mofokeng on the 19th day of December,
proceedings before me are persuant to section 108(a) of the Criminal
Procedure and Evidence Act 1981 against the refusal by
of the Subordinate Court, Maseru to release the appellant on bail
pending his trial.
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)
negligently upon a public road and in the process collided with a
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
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
has not arrived.
6th December 1983 i.e. the following day, Advocate Ramahlodi appeared
in the same Court and made an application for bail.
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
"The defence must note an appeal if it feels aggrieved about the
order made on 5th December, 1983 regarding the ball application."
this ruling which has given rise to the present appeal.
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
Ramahlodi appeared in Court the following day on behalf of the
accused was merely to exercise that right and not to challenge
ruling that the learned magistrate made which
an absolute refusal and of which the appellant was aggrieved and was
therefore appealable in terms of section 108(a) of
Procedure & Evidence
(supra). The appeal is against his second refusal.
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.
contended in the first ground of appeal that the learned magistrate
erred in holding that the applicant is not a citizen of
Well, this information came from the applicant himself that he was a
foreigner. It thus became common cause.
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
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.
grounds have been dealt with in the cause of the judgment.
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
aggravated by the fact that the appellant is a foreigner who lives in
the Republic of South Africa, a country with which there
extradition treaty. In the premises it has not been shown that the
learned magistrate has exercised her discretion capriciously.
appeal is dismissed.
Appellant : Adv. Ramahlodi
Respondent : Adv. Bosiu
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