On 9 May 2008, the applicant was arrested on two allegations of contravening section 4(2) of the Firearms Act [Chapter 10:09], and three counts of contravening section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], what is commonly referred to as armed robbery.

Although the applicant was arrested on 9 May 2008, it was not until the 19^th of May 2008 that he was brought to Harare Magistrates Court for initial remand.

It is common cause that when the applicant was arrested in connection the current offences, he had been on bail pending appeal in respect of two offences of armed robbery.

Because of the nature of the offences allegedly committed by the applicant, he was forced to apply for bail pending trial to the High Court. That initial application was not successful. It was then followed by numerous subsequent applications which were also unsuccessful.

The instant application is being brought in terms of section 116(1) proviso (ii) of the Criminal Procedure and Evidence Act [Chapter 9:07]. Section 116(1)(ii) of the Criminal Procedure and Evidence Act [Chapter 9:07], under which this application has been brought, reads as follows –

“(ii) Where an application in terms of section 117A is determined by a judge or magistrate, a further application in terms of section 117A may only be made..., if such application is based on facts which were not placed before the judge or magistrate who determined the previous application, and which have arisen, or been discovered, after the determination.”

The first changed circumstance alleged by the applicant was that six weeks have elapsed from the last time he made a similar unsuccessful application in this court, and that, cumulatively, it is now almost a year after his remand in prison, and that on its own constitutes changed circumstances since investigations have been completed. The completion of investigations means that there are no longer fears that the applicant will interfere with police investigations, so the argument went.

The second changed circumstance alleged by the applicant was that the State case is no longer as strong as it had been anticipated. This view, according to the applicant's counsel, stems from the fact that whereas initially the applicant was being charged with three counts of robbery and one of possession of firearms and ammunition, the robbery allegations have since been dropped.

It was argued by the applicant's counsel that the dramatic dropping of all the charges of armed robbery, and the coincidence of only police officers as witnesses in the two remaining charges of firearms and possession of ammunition has further weakened the State case to the extent that the applicant must be granted bail pending trial as these developments lend credence to the applicant's stance that these allegations were concocted by the investigating officers in their desperate attempt to cover up their brutal shooting, and maiming of the applicant at the time of his arrest.

In opposing the application filed, the State has raised two main grounds.

Firstly, it was contended, on behalf of the State, that the crime of possessing a firearm, on its own, was a serious offence premised (according to the prosecution) upon cogent, and admissible facts.

The prosecution has not commented on the sudden withdrawal of the robbery charges.

One can only speculate and/or assume that these allegations were raised in an effort to cloud issues in order to complicate the applicant's application for bail pending trial.

In any case, if nothing has been established, insofar as these offences are concerned, for the past twelve months, it remains wishful thinking that anything tangible can be achieved now.

I am more than satisfied that the applicant has made a strong case warranting him to be granted bail pending trial on changed circumstances.

The parties are engaged in a protracted trial wherein the accused is facing serious charges under the Public Order and Security Act [Chapter 11:17]. He is alleged to have possessed weaponry for insurgency, banditry, sabotage or terrorism, in contravention of the Public Order and Security Act [Chapter 11:17].

He is also, in the alternative, facing related charges under the Firearms Act [Chapter 10:09].

His trial commenced on 9 November 2009. So far, the court has heard from five State witnesses. When the State was about to call its main witness, one Peter Michael Hitshman, it was discovered that the witness was not available.

This prompted counsel for the defence to apply for the relaxation of the stringent bail conditions arguing that the State was to blame for the delay.

The State countered that despite the absence of Peter Michael Hitshman, it was ready to proceed with the trial by calling other witnesses.

I am persuaded that the mere fact that the State is ready to proceed with the trial, notwithstanding the absence of its main witness, absolves it from any blame for the delay.

The main reason for the delay cannot be laid at anyone's door, as it was occasioned by the fact that today is the last day of the term. That being the case, these proceedings will have to be adjourned to next term. No-one is to blame for that eventuality. On the facts before me, it is my considered opinion that the accused will have been in the same position whether or not Peter Michael Hitshman had been called today.

While the court is alive to the fact that the presumption of innocence still operates in the accused's favour, there is need to balance the accused's interests against those of the State, and society at large.

The court is also mindful of the fact that the current bail conditions were set by the highest court of the land after careful analysis. For that reason, this court cannot easily alter the bail conditions without a very strong justification.

Having said that, the court is mindful of the fact that the accused has, to date, faithfully observed all his bail conditions.

The court also takes note of the publicity the accused has been subjected to, which, in effect, places him in the public glare, such that he can hardly go anywhere without being noticed. Chances that he might hide anywhere in this country, or sneak past our borders without being easily detected, are remote. There is, however, still a possibility that owing to the gravity of the offences and the possible penalties, the accused, if allowed to leave the country, might elect not to return.

I therefore consider it unsafe to order the release of his passport at this stage.

I, however, consider that as the chances of the accused sneaking past our borders, or going into hiding, are remote, there is some merit in his application for the relaxation of his reporting conditions.

So far, there is no basis for saying that there has been a substantial change in circumstances from that which were prevailing at the time the bail conditions were set as well as at the commencement of the trial.

The trial had been progressing well but for the term prematurely coming to an end.

This is an application for an alteration of bail conditions based on changed circumstances.

The applicant was granted bail pending appeal by this court on the 12^th of November 2003. The conditions of the said bail were varied on two conditions, on the 8^th of July 2004, and on 25 April 2005.

The appeal has not been heard for the past six years.

The respondent has argued that there are changed circumstances in this matter to merit the variation of the applicant's bail conditions.

In order to determine the issue of changed circumstances, in my view, the court must examine both the applicant's and the respondent's position.

The applicant has been awaiting the outcome of his appeal for the past six years – at no fault of his. The respondent is silent about this inordinate delay. In my opinion, the fact that the applicant, despite the previous variation of his bail conditions, fully complied with them, is an indication of a genuine belief in his innocence, and that he has a desire to see the outcome of his appeal.

The applicant, being a former police officer, knows what prison life is like. If he had wanted to abscond, he would have done so sometime ago in view of the relaxation of his previous bail conditions. The above observations, therefore, must be taken as an indication that his desire to have his Title Deed released to him is actuated by a genuine desire to undertake a commercial transaction as opposed to a desire to spring himself out of the jaws of prison life.

He has been awaiting the appeal for six years. His life must not come to a standstill due to circumstances beyond his control. He has a right to continue with his life, moreso, bearing in mind that no indication has been given as to the possible date of his appeal.

For the above reason, it is my belief that this is an appropriate case where the applicant's plight cannot escape this court's judicial sympathy.

This application succeeds, and the following order is made -

It is ordered that  -

1. The Applicant's Title Deed for House No. 1, 7^th Avenue, Woodville, Bulawayo..., surrendered to the Assistant Registrar of the High Court at Bulawayo, by virtue of the Court Order of the Honourable Mr. Justice Chiweshe made on the 12^th of November 2003..., be released to the Applicant.

2. The Applicant be and is hereby ordered to deposit an additional sum of USD100= to the Assistant Registrar before uplifting the aforestated Title Deed.

3. All the other Bail Conditions imposed previously are to stand.

This is an application for bail on the basis of changed circumstances.

The applicant is standing trial in the Regional Magistrates Court on one count of armed robbery and one count of illegal possession of a firearm, in contravention of section 4(1) as read with section 4(2)(b) of the Firearms Act [Chapter 10:09].

The State has, so far, led evidence from eight witnesses. The trial magistrate, unfortunately, died before completing the trial.

The applicant, having been granted bail by the High Court, had that decision reversed by the Supreme Court under case number SC40-09 on the grounds that -

1. Acting on information, the police had raided, and arrested the applicant at a city hotel. Upon searching the room he occupied with his wife they recovered an unlicensed pistol from a bag containing his personal documents

2. The pistol was subjected to forensic ballistic tests which established that the spent cartridges recovered from the robbery scene had been fired from the pistol in question.

3. The accused lives in South Africa but resides at 2A Tarlington Close, Avondale whenever he visits Zimbabwe.

4. It was a notorious fact that people from this country can easily jump the border into other countries without any passport.

On the basis of such observation, the Supreme Court concluded that there was a high risk of abscondment, and, consequently, denied the applicant bail.

He now seeks to be admitted to bail on the basis that there are changed circumstances which now entitle him to bail. It was submitted on his behalf that the changed circumstances are as follows -

1. That the evidence so far from the eight State witnesses is so weak as to entitle the applicant bail. It was stated that the recovered pistol was wrongly described in the police diary as Exhibit 10, giving the impression that the recovered weapon was planted by the police in his bag.

2. That previously the applicant had not offered title deeds as security but was now offering his uncle's title deeds as security.

3. He has now submitted affidavits from his wife and uncle showing that he has strong connections in this country although he is still working in South Africa where he has established a home, and has a house in that country. In proof whereof, he has submitted his passport showing that he pays frequent visits to this country.

Despite the complainants' failure to identify their assailants, the State led evidence from various State witnesses to the effect that the spent cartridges were recovered from the scene of the robbery. Acting on information, the accused was arrested at a city hotel. The room, in which he was booked together with his wife, was searched, and a pistol recovered from his bag.

Both the applicant and his wife signed to acknowledge the recovery of the pistol from his bag.

The State claims it has forensic evidence linking the recovered spent cartridges to the pistol recovered from the applicant's bag. The trial magistrate, however, passed away before he could hear that evidence.

Having regard to the above rudimentary summation of the facts, it cannot be said, by any stretch of the imagination that the State case has weakened in any way from the time the applicant was denied bail by the Supreme Court. If anything, the State has proffered evidence which tends to strongly link the applicant to the commission of both crimes.

I have given a very truncated summation of the facts because I do not wish to be seen to be predetermining the case, for to do so will be to usurp the functions of the trial court. It is the trial court which is best suited to determine this case, after hearing and weighing all the evidence before it.

The trial magistrate's death was a sad, unfortunate, development, but no one should be allowed to take advantage of that occurrence to circumvent the ends of justice. Justice must be pursued to its logical conclusion despite the trial magistrate's demise.

For the foregoing reasons, I am satisfied that there are no changed circumstances warranting the granting of bail to the applicant.

In his oral submissions, counsel for the first, third, fourth, sixth and seventh applicants made three main points. He submitted, firstly, that circumstances in the matter had changed since the last bail hearing in the matter in that the State was not ready to proceed with the trial of the matter immediately after the handing down of the order by the Supreme Court. He further submitted that there was doubt that the trial would commence if set down as one of the key State witnesses was no longer available to testify, and, finally, he submitted that even if the trial commenced there were doubts that the trial would be concluded due to the nature of the evidence available to the State.

Counsel for the State was adamant that it was only the State that could comment on whether or not it was ready to proceed with the trial, and, in this case, the State was ready, and believed it has adequate evidence to secure a conviction. Finally, he submitted that the risk of absconding by the applicants had been amplified by the ruling of the Supreme Court, which had the effect of sanctioning the prosecution of the applicants under the challenged law.

There is no codified list of the circumstances that will be regarded by the court as sufficient to remove the threat to the due administration of justice. The finding that such circumstances exist is in the discretion of the court.

In casu, the applicants have alluded to the passage of time since their respective arrests on the charge.

That a period in excess of thirty months has elapsed is not in dispute. It is further not in dispute that the longer portion of the time constituting the delay was as a result of the referral of the Constitutional question to the Supreme Court for answering. This is a delay caused by the system of justice delivery, and is attributable neither to the applicants nor to the respondent. It is a systemic delay which, though regrettable, is, at times, unavoidable.

In my view, a systemic delay may constitute a change in circumstances for the purposes of removing a threat to the due administration of justice where it is coupled by a resultant weakening of the State case, or the ability of the State to proceed with the prosecution of the applicant. Where, for instance, the systemic delay has caused all, or the key witnesses of the prosecution, to become unavailable through either death, relocation, or any other cause, such a delay can, in my view validly constitute a change of circumstances that removes the threat to the due administration of justice. It appears to me that where the State case has been weakened through the loss of key witnesses the likelihood on the part of the applicant to abscond, or interfere with, or frustrate, the due administration of justice diminishes.  

In casu, the systemic delay in the matter has indeed led to the loss of two State witnesses through death and abscondment. The State has, however, reassured the court that notwithstanding the loss of the two witnesses, it has enough evidence from the remaining witnesses to secure a conviction of the applicants.

I do not deem it advisable, at this stage of the proceedings, to embark upon an analysis of the evidence that the two State witnesses would have led in the matter, and which other evidence the State has in lieu of such. I, however, wish to place reliance on the assurance received from the Attorney General that, indeed, he will proceed with the prosecution of the applicants, and that he has adequate evidence to secure a conviction. In this regard, I wish to reiterate the age-old practice of this court to generally place reliance on the assurances of the Attorney General, and the underlying belief of the court that such is not given lightly in an attempt to secure a short-term gain from the courts.  

I now turn to dispose of this application on its merits.

As I have already indicated above, at this stage, I am considering in the main whether, after the last refusal of bail, circumstances have changed to such an extent that the threats to the due administration of justice, should the applicants be granted bail, have been completely removed, or lessened, to an insignificant level. I am of the view that there have been no such change; notwithstanding the loss of two witnesses by the State.

This time around the applicants allege the existence of changed circumstances based on two planks. The one relates to the loss of two material State witnesses thus weakening the State case, and the other relates to their re-indictment following the dismissal of their case by MUSAKWA J on 9 July 2010 in terms of section 160(2) of the Criminal Procedure and Evidence Act [Chapter 9:07], six months having expired from the date of their committal without having been brought to trial.

The State opposed the application arguing that there are no changed circumstances.

The applicants were denied bail on previous occasions mainly on the premise that it was not in the interest of justice to admit them to bail. Now, the question is whether the applicants, in the present application, have demonstrated that “there has been a change in the circumstance of the matter to such an extent that the threat to the due administration of justice found by the previous court has been removed and that the due administration of justice is now safeguarded from interference or frustration.” Per MAKARAU JP..., in Albert Mugove Matapo & 6 Others v The State HH48-10..., In that case, the loss of the two State witnesses, by death and abscondment, was raised, and was ruled as not constituting a change in circumstances. That factor was again raised in casu. I have not been able to fathom that it has since transformed itself into a change in circumstances.

As regards the re-indictment; whether such a procedure exists in our criminal procedure or not does not fall for my resolution. This is an issue for resolution by the Appeal Court. Whether it constitutes a change in circumstances is within the purview of my resolution.

As far as I view it, I cannot comprehend it amounting to a change in circumstances given the facts of the matter. The failure to comply with section 160(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] was neither the fault of the State nor that of the applicants. It was a systemic delay which occasioned it. How else could the applicants, who had not been acquitted, by the mere dismissal of their case, have been brought back for trial except via re-indictment? I find that nothing has changed in circumstances. If anything, the change in circumstances, based on the re-indictment, relates to the seventh accused's abscondment. That change constitutes an insurmountable difficulty besetting the applicants. The applicants are also facing a charge of conspiracy to escape from a maximum security prison. Their accomplice, who was released from custody, absconded and could not be re-indicted together with the others. The totality of such conduct paints a propensity to abscond. In the result, the threat to the due administration of justice found by the previous court has not been removed. It has, in fact, been worsened. The due administration of justice can only be safeguarded from interference or frustration by denying the applicants bail.

The applicant was denied bail by OMERJEE J on 19 May 2010. He now applies for bail on the basis of changed circumstances.

The previous application was dismissed on the basis of the gravity of the offence, and that the applicant was interfering with investigations through an unidentified third party. The anonymous third party is alleged to have sent threatening text messages to the Investigating Officer. It is also alleged that there has been an attempt to corrupt the Investigating Officer by offering him a bribe of US$45,000=. The State has since tendered in evidence a schedule of the alleged text messages together with an affidavit from the Investigating Officer. 

In his affidavit, the Investigating Officer confirms that he is still being interfered with.

When the court denied the applicant bail it urged the police to wind up their investigations. It further directed the State to investigate the applicant's alibi defence to the effect that he was at work when the offence was allegedly committed. As a result of those further investigations, the State has now tendered a duty roster from the applicant's work place tending to show that he was not at work at the material time.

The State has also tendered a statement by Detective Inspector Zuze stating that the applicant was positively identified by the complainant.

The applicant's trial is imminent as the docket has since been sent to the Magistrate's Court for set down of the trial date.

It was further submitted by the defence that the applicant is a flight risk as the prospect of a long term of imprisonment may prompt him to flee from the court's jurisdiction.

The defence has countered that the end of justice will not be compromised because no link has been established between the sender of the alleged text messages and the applicant. It has been pointed out that the text messages might have been sent by someone who does not have the interest of the applicant at heart.

Counsel for the applicant sought to explain the duty roster by saying that the applicant was not marked present on the duty roster because his group had arrived late at work on that day.

That may very well be so but the fact still remains that documentary evidence at the State's disposal clearly marks him as being absent at the material time. The State has further pointed out that the applicant was no longer stationed at Bulawayo at the time he claims to have been on duty at that station. At this juncture, such evidence can only serve to strengthen the State Case; if, however, the applicant has an innocent explanation; that is for the trial court to determine.

As things stand right now it is clear that events have changed for the worse for the applicant. For that reason, the application cannot succeed.

The applicant, acting in consort and common purpose with four others, is alleged to have robbed ZB Bank at gunpoint on 18 March 2010. He is alleged to have supplied the firearm that was useful in the robbery. The gang, using force and violence, then stole USD114,724=; ZAR14,332=; one pistol; and six cellphones. Subsequent to the armed robbery, the applicant's gang had a shoot-out with police in which a police officer was shot and killed. He was previously denied bail by this court. 

He now applies for bail on the basis of changed circumstances.

The changed circumstances he relies on are that he has now tendered additional security in the form of surrender of title deeds and travel documents. He also claims that the State case has been weakened by the death of one of his alleged accomplices, John Taranayi.

Undoubtedly, this is a very serious offence. The mere fact that the applicant has now tendered additional security and surrender of travel documents, does not, in my view, convert into sufficient guarantee that the applicant will not abscond.

It has been further submitted that our borders are porous and that the applicant has contacts in Mozambique to which he might flee.

I accept that those facts militate against granting the applicant bail as he is a flight risk considering the gravity of his offence.

The mere fact that the applicant's co-accused is now dead does not necessarily mean that the State no longer has evidence against him. The facts alleged by the State point to other independent evidence tending to implicate the applicant. For instance it is alleged that he had possession of the firearm used in robbery. He led to the recovery of that weapon. He has since been convicted of possession of an unlicensed firearm. That evidence, if proved, tends to strengthen, rather than to weaker, the State case.

In the result, I come to the conclusion that there has been no change for the better warranting the granting of bail to the applicant.

The applicant is a South African national. He is on bail together with three accused South African nationals on allegations of fraud involving US$1 million. The alleged principal perpetrator, one Ping Sung Hsieh, is in South Africa awaiting extradition to this country. His extradition hearing is scheduled for 14 June 2011.

On 28 February 2011, OMERJEE J granted the applicant and his co-accused bail pending trial. The bail order reads as follows:-

“1. The applicant to deposit $500= with the Clerk of Court Harare Magistrate Court.

2. The applicant resides at No. 4 Dromore Road, Highlands, until this matter is finalised.

3. The applicant reports at Highlands Police Station twice each day once between 8 a.m. – 12 p.m; once between 3 p.m. – 6p.m. daily.

4. The applicant's passport shall be surrendered by the C.I.D. Law and Order Section to the Clerk of Court, Harare Magistrates Court.

5. The 3 trucks and trailers shall remain parked at ZRP Support Unit Chikurubi until this matter is finalized.”

On 10 March 2011, the applicant and his co-accused applied before a magistrate to have the above bail conditions altered. The magistrate declined jurisdiction and the matter came before KUDYA J on appeal.

The draft order sought for the alteration of the bail conditions was couched in these terms:-

1. The appellants' bail terms and conditions be varied as follows:-

(a) Each appellant deposit with the Clerk of Court a further US$500=.

(b) Each appellant reside at his usual residence in South Africa pending the finalisation of this matter.

(c) Each appellant's passport be returned to him and each appellant be and is hereby authorised to return to South Africa.

(d) The first appellant (Bilal's) Toyota Fortuner Motor Vehicle registration number BIL 786 GP be returned to him.

(e) The trucks and trailers remain in Zimbabwe as stated in the original bail order.

(f) The appellants return to Zimbabwe for trial on 20 June 2011.

KUDYA J dismissed the appeal for alteration of bail conditions.

In the present application the draft order sought is in these words:

“IT IS ORDERED THAT:

1. The order admitting applicant to bail, dated 28 February 2011, be and is hereby amended as follows:-

(a) By the deletion of para 2 and the substitution of the following:-

“2. The applicant be and is hereby authorised to travel to South Africa immediately upon the granting of this order and may remain in South Africa pending the commencement of his trial in matter number CRB1626-9/11.”

(b) By the deletion of para 3 and the substitution of the following:

“3. The applicant is directed to return to Zimbabwe to attend his trial scheduled to commence on 20^th June 2011 and shall, upon his return to Zimbabwe, reside at No.4 Dromore Road, Highlands, Harare until this matter is finalized.”

(c) By the deletion of paragraph 4 and the substitution of the following:

“4. The Clerk of Court, Harare Magistrates Court, is directed to release the applicant's passport to him immediately.”

(d) By the inclusion of the paragraphs 5 and 6 as follows:

“5. The applicant is directed to commence reporting to Highlands Police Station twice each day once between 08.00 a.m. and 12.00 p.m. and once between 3 p.m – 6 p.m. daily. 5.00 (sic) upon his return to Zimbabwe.”

“6. The applicant shall surrender his passport to the Clerk of Court, Magistrates Court upon the applicant's return to Zimbabwe.””

The application is argued to be predicated on humanitarian grounds.

Those grounds are that the applicant's wife, Nazmeera Ebrahim, with whom he has two children aged five years and eight months old respectively, is seriously ill. She was diagnosed with cancer last year and was also diagnosed with heart problems necessitating a heart transplant. Her condition is now dire. Although opportunities for a transplant have been received in the applicant's absence there is no one to take the lead as head of the family. This has frustrated the wife to the extent of refusing to attend at the doctor's rooms preferring to die, if necessary, if the applicant does not return to South Africa. In addition, the two minors have no one to look after them. The applicant has been advised by the medical team and members of his family that the longer he remains in Zimbabwe the higher the likelihood of his wife dying as her chances are reducing daily when there is no one to sign all the relevant and necessary documents for the heart transplant.

Two supporting documents, annexures “A” and “C”, were attached to the application. These are, respectively, a letter and an affidavit from his wife's medical team.

The respondent opposed the application on two main planks, viz that the humanitarian reasons proffered have no basis at law as they do not in any way save the interests of justice and that the applicant, if allowed to leave this Court's jurisdiction, will never be seen again since he is a peregrinus.

Now, in terms of section 126(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] conditions of a recognizance can only be altered or added to, if necessary or advisable, in the interests of justice. In casu, the alteration of, or addition to, the bail conditions being sought is premised solely on humanitarian grounds.

The question for my resolution is whether the grounds advanced are in the interests of justice.

I have not been able to find any authority, and none has been cited by the applicant, showing that humanitarian grounds such as the ones given in the instant case fall within the ambit of the phrase “in the interests of justice.” Such moral or humanitarian considerations have no place in our bail jurisprudence for every accused person denied bail has a moral or humanitarian crisis consequent to him/her.

In order to succeed in the present application, the applicant must show that since the order of my brother, HLATSHWAYO J, on 13 July 2010, denying him bail, circumstances have changed.

The applicant is facing a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is being alleged that on an unknown date between the 27^th of July and 3^rd of August 2011, the applicant, with seven others, struck the now deceased with a sharp object on the head and thereafter removed his tongue, brain, nose, lips and four fingers. The applicant made an application for bail pending trial in this court. The applicant's application for bail was dismissed on 6 September 2011. The basis of the dismissal was mainly the likelihood of abscondment in view of the nature and gravity of the offence and the strength of the case against the applicant. Further, it was held that there was a likelihood that the applicant will interfere with State witnesses like Cecilia Khumalo.

It is contended in the application that there is no longer a risk of interference as a statement has been recorded from Cecilia Khumalo. Further, it is intimated that investigations have been done since 15 August and that the investigations should be complete by now making the applicant not pose a threat to the interests of justice, and, by extension, a good candidate for bail.

In S v Aitken (2) 1992 (2) ZLR 463 (S) it was held that where a bail application has previously been refused and a further application for bail is made to the High Court such an application can only be entertained if fresh facts are elicited that were not before the court when it refused bail. Fresh facts were defined as “new facts which, viewed in conjunction with other relevant factors both adverse and favourable to the accused, tend to reduce in significant degree the risk of abscondment before trial.” 

It is generally recognized that the passage of time since the making of an application for bail can, in certain circumstances, be viewed as a fresh fact. A month has lapsed since the making of the initial application of this nature. The applicant is entitled to lay before the court facts which have arisen or which have been discovered subsequent to the initial judgment dismissing the bail application. It is apparent that at the time of the initial bail hearing a statement had already been recorded from Cecilia Khumalo. So reference to it now cannot rank as a fresh fact. In the bail ruling of 6 September 2011, this court made a specific finding that there was a high likelihood of the applicant interfering with State witness, Cecilia Khumalo, who is her niece. This finding was vindicated because of what the applicant avers in paragraph 10 of the present application. In her own papers, the applicant had evinced that she had already underhandedly interacted and solicited for information from Cecilia Khumalo. At the end of the day, fears of interference have not been dispelled, but have, on the contrary, been strengthened. The applicant has not shown that fresh facts exist in relation to the case against her to warrant her being granted bail.

Accordingly, the application is dismissed.

As regards the relaxation of bail conditions, that can only be done in the light of changed circumstances warranting such alteration of bail conditions.

As I have already pointed out there has been no changed circumstances beyond those that prompted me to grant the remaining 24 accused persons bail. The offence still remains serious and there is need to keep track and an eye on the accused persons to ensure that they attend their trial.

The mere fact that the accused persons have religiously observed their bail conditions cannot, without more, be evidence of the fact that they will not abscond if such conditions are relaxed. Another way of looking at it is that the accused persons have not defaulted because the bail conditions are working as a restraint against default.

1. …,.

2. …,.

This court has been seized over the past five years with the applicant's application for bail pending appeal and the applicant has been a visitor to the Bail Court on no less that 35 occasions. On 3 July 2011, the bail application was struck off the roll on the basis that the applicant had not obtained leave to appeal in the Supreme Court in person. On 31 August 2010, the application was postponed indefinitely pending the outcome of an application to the Supreme Court for leave to appeal. Since then the applicant has had his bail application reset…. occasions in some instances as applications for bail based on changed circumstances and in one instance under the pretext of an application for rescission of the order of 31 August 2010 in which his application for bail had been postponed indefinitely.

The application before me was an application for bail based on changed circumstances ,or, in the alternative, an application for bail in terms of section 123 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The applicant submitted that the changed circumstance was that the basis upon which the application was postponed indefinitely was inconsistent with of the Criminal Procedure and Evidence Act [Chapter 9:07]. The second changed circumstance which also formed the basis for the alternative application was that the applicant is entitled, in terms of section 123 of the Criminal Procedure and Evidence Act [Chapter 9:07] to apply for bail pending an appeal.

I found it difficult, at the time I determined the application, to understand the exact nature of the applicant's submissions - and I still find it difficult to do so. The applicant's application for bail has not been determined by the court on the numerous occasions the matter has been set down. It has either been struck off the roll or postponed with the court indicating to the applicant the limitations of the application….,. Changed circumstances can only exist where an application has been determined on the merits which circumstances would persuade the court to vary its earlier decision in favour of the applicant. As the application had not been determined there cannot be any question of changed circumstances.

This was a second application for bail pending appeal by the applicant in a space of two months. The first had been dismissed by TAGU J on 8 July 2015. So, on this second occasion, the applicant, naturally, had to show “changed circumstances” as envisaged by proviso (ii) to section 123(1)(b)(ii) of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the CP & E Act”).

That provision, in my own words, permits the admission to bail of a person convicted and sentenced by a Magistrate's Court, and whose appeal is pending before this court, provided that where his application has previously been determined, he can only come back on new facts which would not have been considered in the previous application by reason of those facts having arisen, or having been discovered, after the determination of the previous application.

The facts were these;

(a) Charge, conviction and sentence

The applicant, and one Grace Nyaradzayi Pfumbidzayi (hereafter referred to as “Pfumbidzayi” or “the applicant's co-accused”), were jointly charged in the Magistrate's Court for criminal abuse of duty as public officers whilst they were still employed by Air Zimbabwe Holdings (Private) Limited (hereafter referred to as “Air Zimbabwe Holdings” or “the airline”). They were accused of having procured insurance brokerage services from a certain insurance broking firm, Navistar Insurance Brokers (Private) Limited (“Navistar”), without having gone to tender or without affording other insurance companies the chance to bid for those services, allegedly in contravention of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Code or “Code”).

That section reads, with portions highlighted by myself:

“174 Criminal abuse of duty as public officer

(1) If a public officer, in the exercise of his or her functions as such, intentionally -

(a) Does anything that is contrary to or inconsistent with his or her duty as a public officer; or

(b)…,.

for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for [a] period not exceeding fifteen years or both.”…,.

The applicant and his co-accused were also charged with an alternative offence, namely, that of having procured the aforesaid insurance services from Navistar without having sought the approval of the State Procurement Board, allegedly in contravention of section 30 of the Procurement Act [Chapter 22:14], as read with section 5(4)(a)(2) and section 35 of the Procurement Regulations, S.I.171 of 2002.

The charges against the applicant and his co-accused were being preferred some five years or so after the incident giving rise to them, and some years after the applicant had since left the employ of the airline. At the time, he had been the Group Chief Executive Officer. Grace Nyaradzayi Pfumbidzayi had been the Company Secretary and Legal Manager.

The applicant and his co-accused pleaded not guilty to both charges. After a full trial, they were convicted of the main charge, and acquitted of the alternative one. They were sentenced to ten years imprisonment of which three years were suspended. Currently they are serving.

(b) Appeal

The applicant appealed to this court against both conviction and sentence. The appeal is still pending. It is long-winded and convoluted. But, in substance, it attacks the findings of the court a quo. Among other things, the applicant criticises the trial magistrate for having based her conviction on the evidence of, inter alia, Pfumbidzayi, which, he said, was not credible. Of one of the other witnesses for the State, Charles Nyakabau, the applicant brands him, in his Notice of Appeal, as just a hired gun.

On the sentence, the applicant criticises the court a quo for patent mis-directions by, among other things, failing to appreciate that the penal section under which they had been convicted provided for both custodial and non-custodial sentences and that, as such, the court ought to have seriously considered the non-custodial option. The court is also criticised for having failed to give due weight to the mitigating features, such as that the applicant was a first offender who was a suitable candidate for community service.

Thus, on appeal, the applicant seeks the wholesale setting aside of the conviction, or, in the alternative, the reduction of the sentence to two years imprisonment, with one year conditionally suspended, and the other commuted to community service.

(b) First bail application pending appeal

Two months after his conviction and sentence, the applicant filed his first bail application. The learned judge found no prospects of success of the appeal and dismissed it. He also considered that the applicant could abscond. On the propriety of the sentence imposed by the trial court, the learned judge noted that it might have been on the higher side but that it did not induce such a sense of shock as to warrant interference by the Appeal Court. He also considered that even if the sentence was to be reduced on appeal, it was inevitable that a custodial portion would still remain, given the gravity of the offence.

This second bail application, before me, is based on alleged changed circumstances. The applicant is saying, in my own words, and as I understood counsel's submission, he was not a public officer. He should never have been charged with the offence of contravention of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Air Zimbabwe was none of those entities envisaged by the Criminal Code. His conviction is a nullity.

This aspect was completely overlooked by both the prosecution and the defence. It was overlooked in the first bail application. It has never been addressed at any stage before. It is an aspect that was recently discovered by counsel on being briefed to give advice on the way forward after the dismissal of the first bail application. It is also a legal point. It goes to the root of the validity of the conviction. It brings a completely different complexion to the whole issue of the applicant's prospects of success on appeal. The applicant has filed a notice of amendment to his previous grounds of appeal to incorporate this new point.

In a nutshell, that was the applicant's argument before me.

In response, the State, at first, took a technical objection and steered clear of the merits. In substance, the objection was that no changed circumstances exist. It argued that what the applicant had purported to do by filing the amended grounds of appeal was to bring in extraneous issues that had never been considered before. It was not a mere amendment but a wholesome addition to the old notice of appeal. This was in violation of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, 1979, (S.I.504 of 1979).

The State also argued that the fact that the applicant was a public officer had never been put in issue, either at the trial, or in the first bail application. It is not an issue in the only notice of appeal that is properly before the court. The applicant is indeed a public officer. Air Zimbabwe is indeed a State company.

I interrupted the State counsel on the argument about Air Zimbabwe being a State company. He was straying into the merits of the case about which he had, at that stage, not filed any proper response.

After argument, I dismissed the State's preliminary objection and called for argument on the merits. My reasons for dismissing the preliminary objection by the State appear below.

(d) Changed circumstances

The most elementary enquiry pertaining to the charge with which the applicant faced was whether he was a public officer as envisaged by section 174(1)(a) of the Criminal Code. Corollary to that, was Air Zimbabwe Holdings such an entity as envisaged in the Criminal Law (Codification and Reform) Act?

The applicant says, in his application, it was only when counsel had been briefed to give advice on the way forward that it was discovered that he was wrongly convicted. Thus, the nub of the preliminary objection by the State was whether the discovery by counsel of the supposed anomaly constituted changed circumstances, and, whether the notice of amendment of the grounds of appeal by the applicant was proper.

I was satisfied that the discovery, even at that late stage, that the applicant may not have been a public officer, and, therefore, may have been wrongly charged and wrongly convicted, constituted changed circumstances.

The actual wording of the Criminal Procedure and Evidence Act, on the point, with portions underlined by myself for emphasis, reads:

“123 Power to admit to bail pending appeal or review

(1) Subject to this section, a person may be admitted to bail or have his conditions of bail altered –

(a)…,.

(i)…,.

(ii)…,.

(b) In the case of a person who has been convicted and sentenced by a Magistrate's Court and who applies for bail -

(i)…,.

(ii) Pending the determination by the High Court of his appeal; or

(iii)…,.

by a judge of the High Court or by any magistrate within whose area of jurisdiction he is in custody:

Provided that -

(i)…,.

(ii) Where an application in terms of this subsection is determined by a judge or magistrate, a further application in terms of this subsection may only be made, whether to the judge or magistrate who has determined the previous application or any other judge or magistrate, if such application is based on facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or been discovered after the determination.”

Thus, a subsequent bail application is irregular if it is based on the same set of facts that founded the previous one. It is regular if it is based on facts that had not been placed before the judicial officer in the previous application. Those facts ought to have arisen after the determination of the previous application. Alternatively, they ought to have been discovered after the previous application.

Counsel for the applicant said the fact that the applicant was not a public officer was discovered (by himself) after the determination of the previous bail application. As such, he argued, that constituted changed circumstances. Counsel for the State argued that there was no such discovery. This was a fact that was always in existence right from the beginning. It had never been an issue.

It may be that mere remissness or negligence or lack of diligence in failing to place all relevant facts before the court would not ordinarily amount to new facts, or changed circumstances, where a person, or somebody on his behalf, eventually wisens up to those facts. In my view, if, with the exercise of due diligence, such facts would have been made available, the court should not too readily accept them as new facts amounting to changed circumstances.

The test whether in a subsequent bail application there are changed circumstances or not, may be compared to an application for leave to introduce fresh evidence on appeal. The factors to consider should include whether or not the fresh evidence could reasonably lead to a different verdict, and, whether there is a reasonable explanation why such facts were not placed before the court.

Learned authors, LANSDOWN & CAMPBELL in South African Criminal Law and Procedure Vol. V, Juta & Co Ltd, 1982 state that…, in exceptional cases, relief may be granted if the court is satisfied that a reasonable probability exists that a conviction would not stand if the further evidence were accepted. In reference to a violation of constitutional rights in civil proceedings, NGCOBO J, in Bel Porto School Governing Body v Premier Western Cape 2002 (3) SA 265 said…,:

“It is true, a litigant should not be allowed to litigate in piecemeal fashion. But, this right ought not to be allowed to obstruct the course of justice. In my view, the Court should only decline to receive further evidence where it would not be in the interests of justice to do so. The ultimate determinant therefore is the interests of justice.”

I associate myself with such sentiments.

In S v Augustine 1980 (1) SA 503 (A) the accused had been charged with murder. He had been convicted of culpable homicide. Fresh evidence emerged before sentence was passed. It was to the effect that the person whom the accused had stabbed had not died but was still alive. The trial court had been in error in accepting that the person stabbed to death was the person stabbed by the accused. The fresh evidence was accepted. The case was remitted to the trial court.

In casu, if the applicant was not a public officer, and if Air Zimbabwe Holdings was not one of the entities as envisaged by the Criminal Law (Codification and Reform) Act (the Code), then such finding will strike at the heart of the conviction in the court a quo.

The consideration of whether or not the discovery, late in the day, of the fact that the applicant may not have been a public officer, or his former employer not the State or a State corporation, was intrinsically linked to the question whether the applicant's amended grounds of appeal were proper.

Counsel for the State said they were improper because they were not a mere amendment, but rather a completely new ground of appeal. He said to “amend” is to make minor improvements to a document or proposal. He argued that what the applicant had purported to do was to make wholesome changes to his original notice of appeal to bring in a completely new ground.

The applicant's amended grounds of appeal, filed of record a day before the second bail application was launched, read as follows:

“TAKE NOTICE that appellant applies to amend the grounds of appeal contained in the notice and grounds of appeal filed on the 21^st of April 2015 by adding to the grounds appearing in the said notice.”…,.

I find that “add” is a synonym of “amend”. Other synonyms are, “alter”, “adjust”, “modify”, “revise”, “change”, “improve”, “correct”, etc. The applicant was not substituting a new ground of appeal in place of the old ones as implied by the State. In his application, and throughout the hearing, he stressed that he still stood by his old grounds of appeal and implored the court to reconsider his prospects of success in the light of the additional ground of appeal which he felt lent a different complexion altogether to his situation.

Undoubtedly, if the applicant was bringing a new bail application purely and solely on the same set of facts as those considered previously, that would have been irregular and in violation of section 123 of the Criminal Procedure and Evidence Act. But, he was bringing the second bail application on the basis of a new point which, in my view, was both a point of fact and a point of law. He said he had recently discovered it. In his view, the new point struck at the propriety of his conviction in the court a quo. On that basis, he was urging the court to reconsider his prospects of success anew.

I thought he had a point.

In its objection, the State relied on section 6 of the Supreme Court (Magistrates Courts)(Criminal Appeals) Rules. That provision reads:

“6. Amendment of notice of appeal

(1) The Attorney-General or an appellant…, may amend his notice of appeal by lodging a notice in duplicate with the Registrar setting out clearly and specifically the amendment to the grounds of appeal -

(a) In the case of an appeal against conviction or conviction and sentence, as soon as possible and in any event not later than twenty days after the noting of an appeal;

(b) In the case of an appeal against sentence only, as soon as possible and in any event not later than ten days after the noting of the appeal.

(2) A copy of the notice of appeal lodged in terms of subrule (1) shall, at the same time as the lodging of such notice, be served on the other party to the appeal.

(3) An amendment to a notice of appeal in terms of subrule (1) shall not delay the preparation and lodging with the Registrar of the record of the case to which the appeal relates.”

Counsel for the State's major concern was the potential violation of the time limits as set out in section 6 above. Counsel for the applicant countered by invoking section 5 of the same Rules. It reads:

“5. Departure from the Rules

A judge of the Supreme Court or the High Court, or the Supreme Court of (sic) the High Court, may direct a departure from these rules in any way where this is required in the interests of justice, and, additionally or alternatively, may give such directions on matters of practice or procedure as may appear to him to be just and expedient.”

I felt I did not have to concern myself too seriously with whether the applicant's amended grounds of appeal were proper or not, or whether I could grant condonation or not. For me, those were aspects for determination by the appeal judges. Before me was a second application for bail pending appeal based on alleged changed circumstances. Before me was an amended ground of appeal incorporating an aspect, recently discovered as a fact or a point of law, which seemed so fundamental to the prospects of success of the applicant's appeal. On examining that new aspect, I found it to be so profound as to strike at the root of the very conviction in respect of which the applicant was serving time.

Section 6 of the Supreme Court (Magistrates Courts)(Criminal Appeals) Rules (the Appeals Regulations) does not distinguish between a substantial or wholesome amendment from a minor amendment. Before me, the applicant made out a case of changed circumstances. On that basis, I dismissed the preliminary objection by the State.

The State then sought an adjournment to allow the filing of a proper notice of opposition on the merits. It was granted.

(e) Applicant's prospects of success on appeal

In an application for bail pending appeal, it is not the function of the judicial officer to satisfy himself beyond any measure of doubt whether or not the grounds of appeal are doomed to fail. If the applicant has some fighting chance on appeal, then, all the other relevant factors being neutral, the applicant must be entitled to relief.

In casu, counsel for both parties accept the test laid out in S v Hudson 1996 (1) SACR 431 (W). The question is not whether the appeal will succeed. The standard is much lower. It is whether the appeal is free from predictable failure. If that conclusion is reached, the applicant should be entitled to relief.

In Shah v Air Zimbabwe Corporation 2010 (2) ZLR 94 (H), a judgment of this court by KUDYA J, and Air Zimbabwe (Private) Limited & Anor v Stephen Nhuta & Ors HH129-13, a judgment by myself, the finding was that both Air Zimbabwe Holdings and Air Zimbabwe (Private) Limited are private companies formed by shares and registered in terms of the Companies Act [Chapter 24:03]. Air Zimbabwe (Private) Limited was designated as the successor company to the defunct Air Zimbabwe Corporation (“the Corporation”). It was the Corporation that was the statutory body. It had been designated as such by the Air Zimbabwe Corporation Act, then [Chapter 13:02]. But it unbundled in 1998. Chapter 13:02 was repealed by the Air Zimbabwe Corporation (Repeal) Act No. 4 of 1998. Air Zimbabwe Holdings was formed in 2005.

Briefly, the history of this airline is this.

It started off as the Central African Airways Corporation during the days of the Federation of Rhodesia and Nyasaland. In 1968 the name was changed to Air Rhodesia Corporation. It became Air Zimbabwe Rhodesia Corporation during the days of Zimbabwe Rhodesia. After Zimbabwe's independence, in 1980, the airline became Air Zimbabwe Corporation. Throughout all these phases, it was a statutory corporation. But that Corporation was dissolved in 1998. Air Zimbabwe (Private) Limited, which had been incorporated by shares and registered as a private company in 1997, was nominated as the successor company. In my judgment in Air Zimbabwe (Private) Limited & Anor v Stephen Nhuta & Ors HH129-13, I held that there was only one successor company, namely, Air Zimbabwe (Private) Limited, not Air Zimbabwe Holdings. That judgment was upheld on appeal to the Supreme Court in Air Zimbabwe (Private) Limited & Anor v Stephen Nhuta & Ors SC65-14.

In the present case, the State has conceded that Air Zimbabwe Holdings is a private company. The concession is well made. One would think that that would be the end of the matter.

It was not.