IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:
LITABE PELEHA 1st Applicant
RASEBOSE PELEHA 2nd Applicant
RAFEISI PHOLOANYANE 3rd Applicant
HIS WORSHIP MR A.T. TAPOLE 1st Respondent
DIRECTOR OF PUBLIC PROSECUTIONS 2nd Respondent
For Applicants : Mr Mabulu
For Respondents : Mr Mokuku
Delivered by the Honourable Mr Justice T. Monapathi On the 15th day January 2003
This what is called "an urgent application for variation of bail deposit" was moved by Mr Mabulu and was opposed by Mr Mokuku for Director of Public Prosecutions.
The cash bail deposit of M4,000.00 had been fixed by the learned Magistrate when he imposed conditions of bail in favour of these
Applicants. Apparently the amount of bail dissatisfied the Applicants. That is the reason why they have come to this court for a variation of that condition.
The basis for these Applicants' coming to this court is that, the amount of bail was granted by the learned Magistrate without having investigated the personal circumstances of the Applicants and particularly whether they were capable of affording the amount of the cash bail deposit imposed. The Applicants then contend that they were advised by their Counsel that this was an irregularity. It might very well be.
I was however worried whether even if the basis of the Applicants complaint is that an irregularity can be found, this can become a ground on which Applicants find themselves entitled to come to this court for a variation. I thought in the nature of things if a result or remedy sought is that of a variation, then that court or that presiding officer who has granted the bail is the proper person to whom the application for variation should be made. Contrast a situation where bail is allegedly wrongly cancelled where the High Court would have powers of view. See Pillay vs Regional Magistrate , Pretoria 1976(4) SA 290 (T). I concluded therefore that there seems to be no good reasons why these Applicants
should come for a variation of bail conditions imposed by the court a quo. The application was therefore misconceived.
Secondly, I would be worried if where an irregularity is alleged the Applicants would seek to proceed by way of variation where the proper procedure would have been to apply for review or appeal to this court, on the basis of either procedural error, or error of fact or error of law or any other ground that affects the fairness or reliability of the proceedings or decision. The procedure adopted by the Applicants is therefore not acceptable to this court.
The application is dismissed. The Applicants can only apply for either of the mentioned procedures or that they should go back to the court a quo and seek for a variation and not deliberately abuse process of court as they have done in the instant matter.
There has recently been a stream of applications of this kind which are faulty. When an investigation is made attorneys or Counsel concede that the reason why they come to the High Court is for the speed with which these applications are treated or the speed with which the High Court handles matters of this kind.
One may sympathize with Counsel. But the above reason is not a good reason for allowing this kind of applications. Doing so would open floodgates of work that deserves to be not dealt with by this court but by the Subordinate Court as the legislature has provided. Although the jurisdiction of this court is unlimited this should not be a ground for allowing applications of this kind which can only burden this High Court without good cause. This should be strongly discouraged and a start has to be made.
I repeat that the application ought to be dismissed because it is seriously misconceived.