Albert Mugove Matapo and Others v The State

Seven applicants, including a former member of the Zimbabwe National Army, were arrested in May 2007 and charged with contravening section 20 of the Criminal Law (Codification and Reform) Act for allegedly conspiring to overthrow the Government of Zimbabwe through unconstitutional means during 2006-2007. Their trial was set for 7 July 2008, but at commencement, they raised a constitutional challenge to their arrest, detention and indictment, which was referred to the Supreme Court sitting as the Constitutional Court under section 24 of the Constitution, staying the criminal trial. They were previously denied bail. On 7 December 2009, the Constitutional Court unanimously held that the Criminal Law (Codification and Reform) Act was not unconstitutional and that their prosecution did not breach their constitutional rights. Following this ruling, the applicants filed fresh bail applications citing changed circumstances, primarily the delay of over 30 months since their arrest without trial, and that two State witnesses had become unavailable through death and abscondment.

• Whether the passage of time (over 30 months delay) since arrest constituted a change of circumstances warranting bail
• Whether systemic delay caused by constitutional referral proceedings removed the threat to the administration of justice that justified the original bail refusal
• Whether the loss of two State witnesses through death and abscondment weakened the State's case sufficiently to warrant granting bail
• The proper approach to repeat bail applications where bail has been previously refused

The bail application was dismissed. The applicants remained in custody pending trial.

Where an applicant has been previously denied bail, they must demonstrate a change in circumstances sufficient to remove the threat to the administration of justice identified by the earlier court. Systemic delay in criminal proceedings, even if lengthy, does not per se constitute a change of circumstances warranting the grant of bail unless it is coupled with a resultant weakening of the State's case or the State's ability to proceed with prosecution. Where the State, through the Attorney-General, provides assurance that it has adequate evidence to secure a conviction notwithstanding the loss of witnesses, the court will generally rely on such assurance in determining that no material change of circumstances has occurred. The loss of witnesses during systemic delay may remove threats to the administration of justice only where it materially weakens the prosecution case.

The court made important observations about the conduct of the Attorney-General's office. While emphasizing that courts generally place great trust in assurances from the Attorney-General and view that office as dependable with integrity above reproach, the court expressed concern about certain conduct in this case: (1) multiple postponements sought on the basis that records were missing when they were in fact always available, and (2) the repeated raising of allegations that applicants had attempted to flee custody without ever pursuing charges on that matter, giving the impression it was used routinely to oppose bail rather than being pursued with proper vigor. The court noted that such conduct "has the effect of diminishing the trust that the court reposes in this office and is to be regretted." The court also observed that bail pending trial should be viewed as a system where an applicant, being legally innocent, must be admitted to bail unless the administration of justice would be prejudiced, as reflected in section 117(1) of the Criminal Procedure and Evidence Act.

This case is significant in Zimbabwean criminal procedure jurisprudence for clarifying the approach to repeat bail applications after previous refusal. It establishes that systemic delays, even lengthy ones exceeding 30 months, do not automatically constitute changed circumstances warranting bail unless they result in material weakening of the State's case. The judgment reinforces the principle that courts will generally rely on assurances from the Attorney-General regarding the strength of the prosecution case, while also setting standards for the conduct expected from that office. The case illustrates the balance between an accused person's right to liberty and the interests of justice in serious cases involving charges related to attempts to overthrow government.