Cazwell Machisa v The State

The applicant was convicted by the magistrate sitting at Karoi on 3 February 2016 of two counts of stock theft as defined in s 114(2)(a) of the Criminal Law (Codification and Reform) Act. He was sentenced to 9 years imprisonment per count (18 years total) after a finding of no special circumstances. The applicant allegedly stole bovines belonging to two different complainants from communal grazing land. His co-accused, Innocent Mugariwa, was acquitted. Evidence showed that the applicant hired a witness to help drive the cattle and tied them to trees. The applicant's explanation that he believed the bovines belonged to his brother was rejected as unsupported. After obtaining leave to appeal out of time (CA 778/19), the applicant made numerous applications for bail pending appeal between November 2019 and October 2020, all of which were dismissed.

• Whether bail pending appeal should be granted where an appeal has been noted
• Whether the appeal against conviction has prospects of success
• Whether the appeal against sentence is reasonably arguable
• What constitutes 'changed circumstances' justifying a fresh bail application under s 123 of the Criminal Procedure & Evidence Act
• Whether repeated bail applications based on substantially similar grounds constitute an abuse of court process

The bail application was dismissed. The court directed that this constituted the fully dressed judgment requested by the applicant for purposes of any further appeal.

The binding legal principles established are: (1) An applicant must first obtain leave to appeal out of time before properly applying for bail pending appeal, as s 123 of the Criminal Procedure & Evidence Act does not provide for bail pending determination of condonation applications. (2) Changed circumstances under s 123 proviso (ii) require material new facts that were not available or known at the time of the previous application, not merely re-characterization of existing facts. (3) The mere fact that an appeal has not yet been set down does not constitute changed circumstances in the absence of positive steps by the applicant to secure an early hearing. (4) Repeated bail applications based on substantially the same grounds, particularly re-arguing the merits on the same record after a finding of no prospects of success, constitutes abuse of court process.

The court observed that the applicant's plea for bail could have sat on firmer ground had he already served at least 9 years (the minimum mandatory sentence for one count), since even if the sentences were ordered to run concurrently on appeal, he would still have to serve 9 years. The court also noted that while the appeal against conviction had no prospects, the State's concession that the appeal against sentence was reasonably arguable was merited, as concurrent rather than consecutive sentences may have been appropriate given that the theft constituted a single transaction, albeit involving bovines belonging to different owners.

This case demonstrates the Zimbabwean High Court's approach to bail pending appeal and what constitutes changed circumstances justifying repeat bail applications. It clarifies that: (1) bail pending appeal cannot be sought before leave to appeal out of time is granted; (2) the grant of condonation to appeal out of time does not automatically imply prospects of success on appeal; (3) delay in setting down an appeal does not constitute changed circumstances unless the applicant takes positive steps to expedite the hearing; and (4) repeated applications based on substantially similar grounds or re-arguing the merits on the same record constitutes abuse of court process. The case reinforces that bail pending appeal remains exceptional and requires demonstrable prospects of success.