The applicant, who was the Honourable Minister of Finance, Member of Parliament, businessman and commercial farmer, was arrested and detained on 26 April 2004 on one count of contravening the Citizenship of Zimbabwe Act and various counts of contravening the Exchange Control Act and Regulations. He was remanded in custody and unsuccessfully applied for bail before Hlatshwayo J on 11 May 2004. His appeal to the Supreme Court was dismissed by Gwaunza JA on 17 June 2004 (SC 40/04). The applicant then lodged a further bail application restricted to the Exchange Control Act allegations, based on constitutional grounds and changed circumstances. The case required extraterritorial investigations in South Africa and Spain. The applicant claimed to have used 'free funds' from consultancy work obtained from one Luiz Solano in April 2002 to purchase properties outside Zimbabwe, but investigations revealed that Solano had died on 13 October 2001. The applicant had travelled on a foreign (Canadian) passport despite having taken oaths of loyalty and allegiance to Zimbabwe. He obtained an undertaking from the Canadian Embassy not to provide him with travel documents.
The application for bail was dismissed.
There is no prescribed period within which an accused person must be brought to trial under section 13(4) of the Constitution; the reasonableness of any delay must be determined according to the peculiarities and surrounding circumstances of each case. Where a case necessitates complex extraterritorial investigations subject to foreign laws and procedures that create insurmountable obstacles, such exceptional circumstances may justify what would otherwise appear to be a lengthy delay. Bail is not a constitutional right but remains subject to judicial discretion requiring a balance between the accused's right to freedom and the protection of the due administration of justice. Changed circumstances under section 116(1)(c)(ii) of the Criminal Procedure and Evidence Act must be material and favorable to the applicant; where interim developments strengthen the State's case and cast doubt on the applicant's trustworthiness, bail should be refused. An accused's demonstrated willingness to breach oaths of allegiance and obtain foreign travel documents is relevant to assessing flight risk and trustworthiness in bail applications.
The court noted that at the bail stage, the State is not required to prove its case against the applicant but only to place before the court sufficient credible facts which, if proved at trial, will result in a conviction. The court observed that examining all allegations and evidence in detail at the bail stage might unfairly prejudice either party at trial. The court commented that common sense dictates that the applicant could not possibly have obtained funds from Solano in 2002 if Solano died in 2001. The court described the applicant's application as 'a desperate bid to regain his freedom pending trial' and characterized it as having 'two-pronged' bases (constitutional and statutory). The court also observed that while the Canadian Embassy undertaking was a new development, there was no guarantee the applicant might not obtain travel documents through any other embassy which had not made similar undertakings.
This case is significant in Zimbabwean jurisprudence for establishing the approach to determining unreasonable delay under section 13(4) of the Constitution in the context of bail applications. It demonstrates that there is no prescribed time period for bringing an accused to trial, and that reasonableness must be assessed according to the peculiar circumstances of each case, including the complexity of investigations. The case also illustrates the application of changed circumstances provisions under section 116(1)(c)(ii) of the Criminal Procedure and Evidence Act, and confirms that bail is discretionary rather than an automatic right even where constitutional provisions are invoked. The judgment emphasizes that the court must balance individual freedom against the proper administration of justice, and that an applicant's demonstrated untrustworthiness can be a decisive factor in denying bail.