The applicant was a businessman, commercial farmer, and Minister of Finance who had been remanded in custody since 26 April 2004, pending trial on four counts of contravening section 5 of the Exchange Control Act and one count of contravening section 21 of the Citizenship Act (relating to holding a foreign passport). The applicant had previously applied for bail on several occasions without success. By the time of this application, he had been in custody for almost a full year, though his trial had been scheduled to commence on 16 May 2005.
The bail application was dismissed.
Obiter dicta observations made by an appellate court, even when commenting on potential misdirections by a lower court, do not constitute 'new facts' that have arisen or been discovered after a previous determination for purposes of proviso (ii) to section 116(1)(c) of the Criminal Procedure and Evidence Act. Where an appellate court has expressly found that contradictory statements in a previous judgment result in no finding of fact being made on a material issue, a subsequent court cannot rely on one of those contradictory statements to support a fresh bail application. A court will not determine issues in a bail application that are lis pendens before a higher court in separate proceedings, particularly where those issues relate to constitutional questions of unreasonable delay and the right to liberty.
Patel J observed that although the applicant's trial had been scheduled to commence, this did not disentitle him from seeking release from custody, citing S v Chiadzwa 1988 (2) ZLR 19 (SC). The court emphasized the need to strike a balance between the liberty of the applicant and the administration of justice to safeguard both interests. The judge expressed awareness that the applicant had been in custody for almost a full year and that his inalienable right to liberty was at stake, but noted that to achieve the requisite balance, an applicant's case must be mounted on a proper and logical footing and not predicated on specious arguments that cannot be sustained. This suggests judicial sympathy for the applicant's prolonged detention while maintaining procedural and substantive rigor in bail applications.
This case clarifies the interpretation of proviso (ii) to section 116(1)(c) of the Criminal Procedure and Evidence Act in Zimbabwe, which governs when fresh bail applications may be brought based on new facts. It establishes that obiter dicta observations by appellate courts do not constitute 'new facts' for purposes of subsequent bail applications. The judgment also illustrates the application of the lis pendens doctrine in criminal bail proceedings where constitutional issues regarding unreasonable delay are pending before a higher court. It reinforces the principle from S v Chiadzwa that courts must balance the accused's liberty against the administration of justice, while requiring that bail applications be properly founded on sustainable legal grounds.