CRI/APN/291/2007

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

REFILOE
NTSIHLELE APPLICANT

And

THE
DIRECTOR OF PUBLIC PROSECUTIONS 1st RESPONDENT

THE
LEARNED MAGISTRATE (Mafeteng Subordinate court) 2nd RESPONDENT THE
ATTORNEY GENERAL 3rd RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice B.K. Molai On 3rd day of August 2007

On 12th
June 2007, the applicant herein filed, with the Registrar of the High
Court, a Notice of Motion in which he moved the court
for an order
framed, inter alia, in the following terms:

"1. Reviewing and setting aside the proceedings in C.R. 245/07
concerning bail.

2. Reviewing the Learned Magistrate's Judgment of refusing to admit
applicant to bail pending trial.

3. Substituting the Mafeteng Subordinate Court's decision with this
Honourable court's own by admitting applicant to bail....."

2

When, on
20th June 2007, the matter was placed before Guni J. Miss Makholela,
for the respondents, intimated that the respondents
intended to
oppose it and, for that reason, requested a postponement. The matter
was accordingly postponed to 25th June 2007 to
enable the respondents
to file the opposing papers. Indeed, on the same day, 20th June 2007,
the respondents did file, with the
Registrar of the High Court,
notice of intention to oppose this application.

However,
when, on 25th June 2007, the matter was placed before me, no opposing
affidavit had been filed and Mr. Mahao, who then
appeared for the
respondents, told the court that the respondents were no longer
opposing the application. Mr. Mpaka for the applicant
then moved the
application for an order as prayed in the notice of motion.

As there
was no answering affidavit, I had only the founding affidavit to rely
upon for the decision in this matter. In as far as
it is relevant,
the facts disclosed by the founding affidavit are that, on 6th June
2007, the applicant and two other persons appeared
before the
Mafeteng Magistrate Court charged with two counts viz. (1)
Contravention of section 3 (2) of the Sexual offences Act
2003 and
(2) Assault Common.

3

When they
thus appeared before the Magistrate Court, the accused persons
applied for bail. The application was, however, turned
down by the
Court. Aggrieved by the Magistrate's refusal to released him on bail,
the accused person filed, with the Registrar
of the High Court, the
present application for review.

It is
significant to observe that the procedure governing bail is laid down
under part VIII of the Criminal Procedure and Evidence
Act, 1981

of which
subsection (2) of section 99 provides:

"(2) The refusal of the Magistrate, who has committed any person
for trial, to grant such person bail shall be without prejudice
to
such person's right under section 108."

Now,
subsection (1) (a) of section 108 of the Criminal Procedure and
Evidence Act 1981 provides, in part:

"(1) Where an accused person considers himself aggrieved:

(a) by the refusal of any Magistrate to admit him to bail; or

(b)..............................................................

he may appeal against the decision of the Magistrate to the

High Court which shall make order thereon as it, in the
circumstances, seems just."

In the
present case, the applicant was admittedly aggrieved by the
Magistrate's refusal to release him on bail. On the authority
of the
above cited subsection (1) (a) of section 108 of the Criminal
Procedure and

4

Evidence
Act, 1981 the applicant/accused had to approach the High Court by way
of appeal and not by way of review, as he has done.
In the
circumstances, the application is struck off the roll. If he so wish,
the applicant/accused may approach the court by way
of appeal as
required by section 108 (1) (a) of the Criminal Procedure and
Evidence Act 1981 .

B.K.
MOLAI

JUDGE

03/08/07