CRI/APN/509/07
IN THE HIGH COURT OF LESOTHO
In the matter between:-
ALEXANDER OMORODION APPLICANT
and
MASERU MAGISTRATE 1ST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS 2ND RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 19th October 2007
Applicant approached this Court by way of notice of motion whereby he is seeking to be granted an order couched as follows: -
Dispensing with ordinary modes and periods of service on account of urgency.
A Rule Nisi be issued and returnable on the 1st day of October 2007 calling upon the Respondents to come and show cause if any why:-
1st Respondent shall not be directed to dispatch the record of proceedings in CR 441/07 to the Registrar of this court within
seven (7) days of receipt herein and to inform Applicant's attorneys that he has done so.
Cancellation bail granted to Applicant in CR 441/07 shall not be reviewed and set aside.
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c) Bail granted to Applicant in CR 441/07 shall not be reinstated.
d) Further and/or alternative relief.
The application is opposed and was argued before me on the 8th October 2007. It is the case of applicant as stated in his founding affidavit that during the month of April 2007 he appeared before 1st respondent on a charge of fraud and was released on bail with conditions including that he surrenders his passport to the clerk of court which he did.
That subsequently, he attended remands until the 13th August 2007 when he failed to do so because he had been arrested in the Republic of South Africa whereby he instructed his then Counsel of record Mr. Molapo to appear on his behalf and explain the reasons for his non-attendance to the Court which the latter did. Further that on that date, Mr. Seema Counsel for the prosecution applied for a warrant of his apprehension on the ground that he had skipped the country and failed to attend remands and that the application was refused by the magistrate who was presiding. It is also his case that in the interim, he instructed his counsel of record to apply for a variation of his bail conditions to wit; the release of his passport.
It is applicant's case that upon his release from RSA he came back to Lesotho and having instructed his counsel of record to find out when next he was due to attend remands and having been informed that this was to be on the 13th September 2007, he duly attended his remand. It was then
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that his present Counsel of record, Mr. Molefi applied for a variation of his bail conditions as aforementioned.
Applicant further states that instead of entertaining that application, "1st Respondent told my counsel of record that he had heard that I had left Lesotho and that J had used another passport." He continues as follows at paragraph 10 of his founding affidavit: -
"He went on to say that he was prepared to detain me should Mr Seema apply so unless my counsel of record convinced him otherwise.
Indeed Mr Seema applied for the cancellation of my bail. 1 espondent (sic) readily upheld the application"
Most of these facts are common cause as also evinced by contents of the record of proceedings emanating from the court a quo. Although Mr. Seema denies that on the 13th September 2007 Mr. Molefi applied for variation of applicant's bail conditions first, which application he opposed and proceeded to make a counter application for cancellation of bail, perusal of the handwritten record reveals at page 11 that this is what actually happened. That is to say, the application for variation preceded the application for cancellation of applicant's bail.
In his submissions before this Court, Mr. Molefi made the contention that 1st respondent had made a predetermination of the issue and for that reason his cancellation of applicant's bail was irregular and un-procedural. He added that applicant was not given a chance to explain his non-attendance. Counsel also made the submission that the
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ruling was tantamount to a final decision which, so he contended, 1st respondent did not have the power to make.
Counsel for applicant added that the argument that by leaving for South Africa, applicant had violated his bail conditions is not correct for the reason that he was only ordered to surrender his passport and was never forbidden to leave for the RSA. Further that, the main principle regarding bail is to ensure that an accused will stand his trial. Mr. Molefi added that applicant did everything to show that he had no intention to abscond and to not attend his trial. He made the further submission that 1st respondent's decision amounted to a review of the decision of another magistrate who had earlier on refused the application for cancellation of bail and that by doing so, he acted irregularly.
In response, Mr. Joala who represented the respondents reiterated that one of the bail conditions for his release was that applicant should surrender his passport to the Clerk of Court. He added that this condition means that an accused person is not meant to leave the country but to remain within.
He conceded that the move for variation was made, to which Mr. Seema objected and counter applied for cancellation of applicant's bail before 1st respondent who had granted bail to applicant. He added that 1st respondent was correct in finding that applicant was not supposed to have left the country hence the condition that he should surrender his passport and as such, the reason that he could not attend
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his remands because he had been arrested in RSA is not good enough.
Mr. Joala also pointed out that on the remand date when applicant failed to attend, the only application that was moved was for the magistrate to issue a warrant of arrest which was denied and that the application for cancellation of bail was never moved at that stage but was dealt with for the first time by 1st respondent so that the suggestion that 1st respondent had reviewed the decision of the other magistrate's was incorrect. Further that the latter had refused to entertain it on the ground that since she was not the one who granted applicant bail in the first place, she could not make a finding with regard to what the attached conditions meant.
Lastly, Mr. Joala made the submission that, that applicant left the country despite the fact that he had been directed to surrender his passport, is a sign that he is likely to abscond and not attend his trial. It was also his submission that remands are to be attended by an accused and not his counsel.
I now turn to deal with the issue of what the condition that an accused person must surrender his passport means and/or implies. I also do not intent to deal in detail with the principles regarding bail as these are trite, save to emphasize that with regard to bail, the main consideration is whether or not by releasing an accused person, the interests of justice will not be prejudiced in that he might abscond and not stand his trial to its finality.
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Bearing this in mind, it is my opinion that whenever a Court orders that as a condition of bail an accused person must surrender his passport, it is to ensure that he will stay in the country and not leave, at least not without the permission of the Court. My reason is that if it were to be interpreted otherwise, then the taking of his passport and keeping it in its custody would serve no real purpose.
It is undeniable that a passport is basically a travel document whose main function is to enable movement of people from one country to another. Although it is sometimes used for other reasons such as constituting proof of identification of its holder inter alia, those are usually incidental and hardly constitute factors to be taken into consideration in bail applications whose basic consideration I have already alluded to above and which as I have already said, it is logical to conclude that taking it away from its owner is to ensure that he does not leave the country and possibly abscond. In light of this, the submission that this condition does not inherently mean that an accused should remain in the country amounts to an absurdity and I accordingly reject it.
Coming back to the present facts, although this fact was not brought to the attention of this Court, perusal of the record from the court a quo reveals that even before the 13th August 2007, an application for variation of applicant's bail conditions to wit, that his passport should be released to him was moved by Mr. Molapo who was representing him then and was refused by the court. This appears at pages 3-7 of the handwritten record. The said application was moved on
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the 30th April 2007. Although the reasons that were advanced therein were that applicant needs the passport for his day-to-day business as a principal at his school, I can safely conclude that though not stated in the record, the reason for the refusal was to disable him from leaving the country.
Subsequent to that, applicant dutifully attended his remands until the 13th August 2007 when he was unable to attend for reasons I have already stated above. The record however reveals that Mr. Molapo appeared before the Court and explained applicant's predicament. This was duly done and Mr. Seema's application for a warrant of his arrest on this basis was refused by the magistrate.
However, the fact that applicant was able to leave for RSA despite that having surrendered his passport to the Court is a rather disturbing factor for in my opinion it defeats the very purpose for which it was meant. It further leaves room for this Court to draw an inference that if it is that easy for him to leave this country that factor notwithstanding, then there is a possibility that if he so wishes, he can indeed skip the country and not attend his trial. This is especially because he is a perigrinus and in the event of that possibility becoming a reality, it will not be easy to trace, find and bring him back so that he can face his charges.
Yet, on the other hand, I cannot ignore the fact that after he was arrested in the RSA and being aware that he would not be able to attend his remands in Lesotho, applicant duly informed and instructed his counsel of record to appear
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before the Court and explain the reasons for his non-attendance. This in my opinion belies the above suggestion, i.e., that it was his intention to abscond as further evinced by his subsequent attendance of his next remand date. In light of the, I am of the opinion that when these facts are taken in their totality, I cannot readily conclude that applicant intended to breach his bail condition and to abscond.
However, the record further reveals that it was at the subsequent remand which applicant attended that Mr. Seema's moved a counter application for cancellation of bail which 1st respondent granted without having afforded applicant the chance to explain the reasons for his non-attendance. In my opinion, although Mr. Molapo had already offered the explanation on his behalf in the earlier remand, it was prudent that applicant be given the opportunity to explain himself so that the Court could hear from him why and how he had left the country and possibly to clarify to him why he was ordered to surrender his passport as one of his bail conditions and what that condition presupposes.
Over and above this, the usual practice where an accused has absconded is for the Court to issue a warrant for his arrest, on application or mero motu, so that he can come and explain the reasons for his non-attendance on the basis of which the Court can decide whether or not to cancel his bail and remand him in custody. In my view, it was therefore incorrect for 1st respondent to cancel applicant's bail without hearing him first especially in the light of the fact that he
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had not failed to attend his previous remand without reason, had all along been attending his remands and had also offered an explanation
through his then counsel of record for his non-attendance and had not come to Court as a result of having been arrested.
With regard to the suggestion that 1st respondent's order amounted to a review of the other magistrate's decision, perusal of the handwritten record, especially page 10 thereof, reveals that when the application for a warrant of his arrest was moved before her, the magistrate Mrs. Ralebese stated as follows:-
"...On the issue that the accused person crossed the Lesotho borders contrary to/in violation of his bail conditions that he should surrender his passport I am not convinced that that particular condition actually meant that accused should never cross Lesotho's borders. Maybe Mr. Seema can appear before the court which granted the accused person bail as it can know what that condition meant..."
My understanding of the above passage is that while she expressed her opinion with regard to the submission that was made by Mr. Seema regarding what the bail condition to surrender a passport means, the magistrate did not as a matter of fact make any decision with regard to an application for cancellation of bail as she was only entertaining the application for a warrant of arrest of applicant. I have already shown that these two are not necessarily the same and that the one (issuance of warrant of arrest) usually precedes the other (cancellation of bail).
I have also shown that Courts issue warrants of apprehension so that the accused can come and explain his
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non-attendance after which it will decide whether or not to cancel his bail. Even Mr. Seema admitted as much in his opposing affidavit at paragraph 6.1 where he stated:-
"On the 13th September 2007, I appeared before Her Worship Ralebese to apply for a warrant of apprehension against Applicant
calling him to appear before court to show cause why his bail application should not be cancelled for failure to attend remand and skipping the country in violation of his bail conditions. I reiterate that the application was not to cancel bail but to bring Applicant before court to explain. I would not attempt to cancel his bail without giving him a hearing." (my underlining)
In light of the above, I am of the view that when all the surrounding circumstances in casu are considered, 1st respondent was wrong to cancel applicant's bail without giving him the opportunity to be heard first. The decision was as such arrived at without due
observance of the audi alteram partem principle. As such, it was indeed irregular and resulted in applicant suffering prejudice.
It is for these reasons that I confirm the rule nisi and grant the application as prayed for in terms of prayers 2 (b) and (c) in the notice of motion.
N.MAJARA
For applicant : Mr. T. Molefi
For respondents : Mr. Joala
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