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:
(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
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
[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
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
(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
(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-
and places at which and persons to whom the accused shall present himself;
where he is forbidden to go;
against communication by the accused with witnesses for the prosecution or any
named person; or
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-
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
[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
(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
[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