PART IX
Bail (ss 104-122)

A. AFTER PREPARATORY EXAMINATION IS CONCLUDED (ss 104-110)

[Ch0802s104]104.   Bailable offences

            Every person committed for trial or sentence in respect of any offence except treason or murder may be admitted to bail in the discretion of the magistrate:

            Provided that-

      (i)     the refusal by the magistrate who has committed any person for trial, to grant such person bail shall be without prejudice to such person's rights under section 113, and

      (ii)     the magistrate may admit to bail a person under the age of 18 committed for trial on a charge of murder.

[Ch0802s105]105.   Verbal application for bail

            It shall be competent for the accused at the time of the commitment to apply verbally to the judicial officer granting the warrant of commitment, to be liberated on bail.

[Ch0802s106]106.   Application for bail after commitment

            (1) At any period subsequent to the time of commitment it shall be competent for the accused to make written application to the magistrate who granted the warrant of commitment, or to a magistrate having jurisdiction within the district in which he was committed for trial, or to a magistrate having jurisdiction within the district in which he is in custody, unless bail has already been refused by any magistrate. When the commitment is on a warrant issued by the High Court it shall only be competent to apply for bail to the High Court.

            (2) Every such written application for bail shall be in a form of a petition and shall be accompanied by a copy of the warrant of commitment or by affidavit that a copy is denied.

[Ch0802s107]107.   Magistrate to determine whether the offence is bailable

            (1) Every magistrate to whom an application for bail is made under section 106 shall within five days thereafter if the offence is bailable by him, fix the amount of the bail to be given, or after consideration of such application may, in his discretion, refuse to grant bail.

            (2) In determining whether the offence for which the accused has been committed is bailable or not by him, the magistrate shall, in the ordinary case, take the charge against the accused as he finds it on the face of the warrant of commitment.

[Ch0802s108]108.   Refusal of bail from the uncertain issue of act committed

            In cases where a doubt may arise concerning the degree and quality of the offence from the uncertain issue in the case of an injury of which it cannot be foretold whether the person injured will die or recover, every judicial officer to whom application for bail is made may refuse to grant the same until all danger to the life of the person injured is at an end.

[Ch0802s109]109.   Conditions of recognizances

            (1) The recognizance which is taken on the admission of an accused person to bail under sections 104 to 108 of this Part shall be taken by the judicial officer either from the accused alone or from the accused and one or more sureties in the discretion of the judicial officer according to the nature and circumstances of the case.

            (2) The conditions of the recognizance shall be that the prisoner shall appear and undergo any further examination which the magistrate or the Director of Public Prosecutions may consider desirable and also answer to any indictment that may be presented, or charge that may be made, against him in any competent court for the offence with which he is charged at any time within a period of 12 months from the date of the recognizance; that he will also attend during the hearing of the case and to receive sentence; and that he will accept service of any summons or warning to undergo further examination and any such indictment or charge, notice of trial, and summons thereon and any other notice under this Act at some certain and convenient place within Botswana chosen by him and expressed therein.

            (3) The recognizance shall continue in force notwithstanding that for any reason, when the trial takes place, no verdict is then given, unless the indictment or charge is withdrawn.

[Ch0802s110]110.   On failure of accused to appear at trial, recognizance to be forfeited

            If upon the day appointed for the hearing of a case it appears by the return of the proper officer or by other sufficient proof that a copy of the indictment and notice of trial or, in case of a remittal to a magistrate's court, the summons or warning has been duly served or given and the accused does not appear after he has been three times, in or near the court premises, called by name, the prosecutor may apply to the court for a warrant for the apprehension of the accused, and may also move the court that the accused and his sureties (if any) be called upon their recognizance, and, in default of his appearance, that the same may be then and there declared forfeited; and any such declaration of forfeiture shall have the effect of a judgment on the recognizance for the amounts therein named against the accused and his sureties respectively.

B. IN CASES TRIED BY MAGISTRATES' COURTS (s 111)

[Ch0802s111]111.   Power to admit to bail, nature of bail and provision in case of default

            (1) When a criminal case before a magistrate's court is adjourned or postponed and the accused remanded, the magistrate may in his discretion, admit the accused to bail in manner herein provided:

            Provided that the accused shall not be remanded for more than one month if not in custody, or for more than 15 days if in custody.

            (2) When a magistrate decides to admit an accused person to bail under this section, a recognizance shall be taken from the accused alone or from the accused and one or more sureties, as the magistrate may determine, regard being had to the nature and circumstances of the case. The conditions of the recognizance shall be that the accused shall appear at a time and place to be specified in writing and as often as and at such intervals not exceeding one month as may be necessary thereafter within a period of six months, until final judgment in his case has been given, to answer the charge of the offence alleged against him or the charge of any other offence which may appear to the Director of Public Prosecutions or the local public prosecutor to have been committed by the accused.

            (3) The magistrate may further add to the recognizance any conditions which he may deem necessary or advisable in the interest of justice as to-

     (a)     times and places at which and persons to whom the accused shall present himself;

     (b)     places where he is forbidden to go;

     (c)     prohibition against communication by the accused with witnesses for the prosecution or any named person; or

     (d)     any other matter relating to his conduct.

            (4) If it appears to the magistrate that default has been made in any condition of a recognizance taken before him or if it appears to the magistrate before whom an accused person has to appear in terms of any recognizance entered into before another magistrate that default has been made in any condition of such recognizance, such magistrate may-

     (a)     issue an order declaring the recognizance forfeited, and such order shall have the effect of a judgment on the recognizance for the amounts therein named and against the person admitted to bail and his sureties respectively; and

     (b)     issue a warrant for the person admitted to bail and afterwards, on being satisfied that the ends of justice would otherwise be defeated, commit him, when so arrested, to a gaol until his trial.

C. GENERAL FOR ALL CRIMINAL CASES (ss 112-122)

[Ch0802s112]112.   Excessive bail not to be required

            The amount of bail to be taken in any case shall be in the discretion of the judicial officer to whom the application to be admitted to bail is made:

            Provided that no person shall be required to give excessive bail.

[Ch0802s113]113.   Appeal to High Court against refusal of bail

            Whenever an accused person considers himself aggrieved by the refusal of any magistrate to admit him to bail or by such magistrate having required excessive bail, he may apply in writing to the judge of the High Court who shall make such order thereon as to him in the circumstances of the case seems just.

[Ch0802s114]114.   Power of the High Court to admit to bail

            Except where otherwise expressly provided the High Court shall have power, at any stage of any proceedings taken in any court in respect of an offence, to admit the accused to bail, whether the offence is or is not one of the offences specifically excepted in section 104.

[Ch0802s115]115.   Insufficiency of sureties

            If, through mistake, fraud, or otherwise, insufficient sureties have been accepted or if they afterwards become insufficient, the judicial officer granting the bail may issue a warrant of arrest directing that the accused be brought before him and may order him to find sufficient sureties, and on his failing to do so may commit him to prison.

[Ch0802s116]116.   Release of sureties

            (1) All or any sureties for the attendance and appearance of an accused person released on bail may at any time apply to the judicial officer before whom the recognizance was entered into to discharge the recognizance either wholly or so far as relates to the applicants.

            (2) On such application being made, the judicial officer shall issue a warrant of arrest directing that the accused be brought before him.

            (3) On the appearance of the accused pursuant to the warrant or on his voluntary surrender, the judicial officer shall direct the recognizances to be discharged either wholly or so far as relates to the applicants and shall call upon the accused to find other sufficient sureties and, if he fails to do so, may commit him to prison.

[Ch0802s117]117.   Render in court

            The sureties may bring the accused into the court at which he is bound to appear during any sitting thereof and then, by leave of the court, render him in discharge of such recognizance at any time before sentence, and the accused shall be committed to a gaol there to remain until discharged by due course of law; but such court may admit the accused person to bail for his appearance any time it deems meet.

[Ch0802s118]118.   Sureties not discharged until sentence or discharge of the accused

            The pleading or conviction of any accused person released on bail as aforesaid shall not discharge the recognizance, but the same shall be effectual for his appearance during the trial and until sentence is passed or he is discharged; nevertheless the court may commit the accused to a gaol upon his trial or may require new or additional sureties for his appearance for trial or sentence (as the case may be) notwithstanding such recognizance; and such commitment shall be a discharge of the sureties.

[Ch0802s119]119.   Death of surety

            When a surety to a recognizance dies before any forfeiture has been incurred, his estate shall be discharged from all liability in respect of the recognizance, but the accused may be required to find a new surety.

[Ch0802s120]120.   Person released on bail may be arrested if about to abscond

            Whenever an accused person has been released on bail under any of the provisions of this Part, any judicial officer may, if he sees fit, upon the application of any peace officer and upon information being made in writing and upon oath by such officer or by some person on his behalf that there is reason to believe that the accused is about to abscond for the purpose of evading justice, issue his warrant for the arrest of the accused, and afterwards, upon being satisfied that the ends of justice would otherwise be defeated, commit him, when so arrested, to gaol until his trial.

[Ch0802s121]121.   Deposit instead of recognizance

            (1) When any person is required by any judicial officer to enter into recognizances with or without sureties under any of the provisions of this Act, such judicial officer may, except in the case of a bond for good behaviour, instead of causing such recognizances to be entered into, permit him or some person on his behalf to deposit such sum of money as the judicial officer may fix. Conditions in writing shall be made, in respect of such a deposit of money, of the same nature as the conditions prescribed by this Part in respect of recognizances, and all the provisions of this Part prescribing the circumstances in which recognizances taken from the accused alone shall be forfeited, his arrest if about to abscond, and remission of forfeited bail, shall apply mutatis mutandis in respect of any such deposit of money.

            (2) Where the charge against the accused person is not one of the offences mentioned in subparagraphs (i) and (ii) of paragraph (b) of section 28 any policeman of or above the rank of Sub-Inspector, may, at a police station and at such times as no judicial officer is available, admit to bail an accused person who makes or on whose behalf is made a deposit of such a sum of money as such police officer may in the particular circumstances fix. The provisions of subsection (1) as to conditions, forfeiture and remission of forfeited bail shall mutatis mutandis apply in respect of a deposit of money made under this subsection.

[Ch0802s122]122.   Remission of bail

            The President may in his discretion remit any portion of any amount forfeited under this Part and enforce payment in part only.