Lobatse High Court judge Onkemetse Tshosa has varied a P150, 000 bail set against alleged con artist, Othusitse Tshesebe, by retired Chief Justice Julian Nganunu and reduced it to P30, 000.
Tshesebe is alleged to have swindled several people in Gaborone by collecting money from them with the promise that he would buy cars for them in South Africa, and then not living up to his promise.
When making the variation, Justice Tshosa said that the application should have been heard by Justice Nganunu who had set bail at P150, 000. He, however, agreed to hear the application as Justice Nganunu has retired.
The state did not oppose the bail application. Tshesebe’s attorney, Busang Manewe, argued that the court should consider the applicant’s means when determining the suitable bail amount.
He further said that while the court has the discretion to grant bail, the discretion should be exercised judiciously and not arbitrarily or capriciously.
When making his judgment, Justice Tshosa said that it is altruism that discretionary powers, once conferred, should be exercised judiciously and not in an arbitrary manner. He also said that the applicant had argued that an assessment had revealed that he cannot afford the cash bail of P150, 000 and had asked the Court to judiciously exercise its discretion and vary the amount to P5, 000.
The question that arises here, he said, is whether varying or reducing the amount of P150, 000 to P5, 000 as suggested by the applicant would amount to judicious exercise of discretionary powers or whether it will serve the interest of justice in the circumstances of the case.
“In view of the fact that the amount of money involved in the case is nearly half a million pula, variation of the cash bail to the suggested amount of P5, 000 would be unfair. It would not be a proper and judicious exercise of discretion,” said Justice Tshosa. He then varied bail at to P30, 000.
