Brian Chikanya v The State

The applicant was charged with murder, alleged to have intentionally caused the death of his brother, Lancelot Chikanya, through assault at Ushangani Village, Chief Musana, Bindura. Lancelot Chikanya died due to severe injuries from the assault. The applicant had previously applied for bail pending trial in February 2015 (B 82/15) which was refused on grounds that: (1) he killed his own brother and releasing him was dangerous for his own safety; (2) he faced a very serious offence with overwhelming evidence against him; (3) he was likely to abscond as it would be difficult to stay with his family who were no longer comfortable with him; and (4) witnesses were all his relatives and he was likely to interfere with evidence. The applicant now approached the court claiming changed circumstances, submitting an affidavit from his brother-in-law, John Zigwatire, who offered accommodation at Number 28819 Unit L Extension, Seke, Chitungwiza, away from the scene of the crime.

• Whether the change of proposed residence constitutes a valid changed circumstance warranting reconsideration of bail under section 116(1) proviso (ii) of the Criminal Procedure and Evidence Act [Chapter 9:07]
• Whether the changed circumstances are sufficient to overcome the original grounds for refusing bail, particularly the seriousness of the offence and strength of the state case
• Whether the provision of alternative accommodation addresses the concerns of absconding, witness interference, and the applicant's safety

The application for bail pending trial was dismissed.

The provision of alternative accommodation away from the scene of the crime constitutes a changed circumstance for purposes of a fresh bail application under section 116(1) proviso (ii) of the Criminal Procedure and Evidence Act. However, even where changed circumstances are established, the court must consider all relevant factors, both new and old, to determine whether the applicant is a suitable candidate for bail. Changed circumstances that do not adequately address the principal grounds for the original bail refusal - particularly the seriousness of the offence coupled with the strength of the state case and the resulting risk of absconding - are insufficient to warrant the granting of bail.

The court noted that the State's submissions regarding the applicant running away from police at the time of arrest and intending to flee to Mozambique were bald assertions without proof, and the court stated it would not place much reliance on such unsubstantiated claims. The court also observed that information regarding the strength of the state case was available to the judge who refused bail at the previous hearing, suggesting this was not truly a new circumstance warranting reconsideration.

This is a Zimbabwean case, not a South African case. However, it illustrates principles applicable in bail applications based on changed circumstances: (1) alternative accommodation away from the crime scene can constitute a changed circumstance; (2) even where changed circumstances exist, courts must consider all relevant factors, both new and old, in determining whether to grant bail; (3) changed circumstances alone are insufficient if they do not adequately address the fundamental concerns that led to the original bail refusal, particularly the seriousness of the offence and strength of the state case; and (4) the applicant bears the onus to demonstrate that exceptional circumstances exist warranting release in the interest of justice.