Everitso Kamone v The State

The applicant was convicted of contravening s 45(1)(b) as read with s 128 of the General Laws Amendment Act (GN 148/2011), which creates and penalizes the possession of a specially protected animal under the Parks & Welfare Act [Chapter 20:14]. The applicant, in the company of 4 accomplices, was in unlawful possession of 2 live pangolins which they tried to sell to a potential buyer who was in fact a policeman in disguise. The applicant carried one of the pangolins. The applicant and accomplices were arrested and brought before court where the applicant pleaded guilty. In the absence of special circumstances, the applicant was sentenced to the minimum mandatory sentence of 9 years. The applicant appealed against sentence and his appeal was pending before the High Court. His previous bail pending appeal application had been dismissed by Muremba J on 13 December 2017 (judgment recorded as HH 216/18). The applicant then brought this subsequent application for bail pending appeal based on alleged changed circumstances.

• Whether the applicant had demonstrated changed circumstances justifying a second bail application pending appeal
• Whether the alleged failure by the trial magistrate to explain the concept of common purpose constituted a changed circumstance under s 123(1) proviso (ii) of the Criminal Procedure and Evidence Act
• Whether a subsequent bail application can be based on the same record of proceedings previously considered by another judge
• Whether the applicant's appeal had prospects of success

The application for bail pending appeal was dismissed.

A subsequent bail application pending appeal based on changed circumstances under s 123(1) proviso (ii) of the Criminal Procedure and Evidence Act must be based on facts which arose or were discovered after the previous determination, not on new legal arguments derived from the same unaltered record of proceedings previously considered. Revisiting the same facts previously considered as they appear on record does not amount to a changed circumstance but constitutes an impermissible attempt at revision or correction. One judge of the High Court does not have jurisdiction to disturb or set aside the findings of another High Court judge; only the Supreme Court on appeal can do so. An applicant cannot make a subsequent bail application by simply having a different lawyer identify a point that was available from the record during the previous application - this amounts to taking "a second bite of the cherry" which is not permitted.

Chitapi J made extensive observations about the conduct of state counsel in handling the bail application, describing their conduct as "inept and clumsy" and stating that "the court deprecates, abhors and frowns upon such conduct." The judge observed that bail applications are liberty issues treated as priority matters, and that state counsel must "pull up their socks and discharge their obligations with reasonable promptitude." The judge noted that while the court would ordinarily sympathize with counsel attending a funeral, in this case the repeated postponements and defiance of court directives demonstrated incompetence. The judge stated that the Prosecutor General should "whip his officers into line lest the administration of justice falls into disrepute" and expressed hope that the judgment would "act as a wakeup call to the need to take action to arrest the situation before it gets totally out of control." The judge also commented that had this been a civil application, the court could have considered penalizing the State with costs. The judge noted that a judge presiding in bail court typically has to read through 30-40 applications per day and prepare to deal with them in one hearing, emphasizing that state counsel should show similar dedication.

This case clarifies the requirements for bringing a subsequent bail application pending appeal based on changed circumstances in Zimbabwean law. It establishes that a subsequent application cannot be based on the same record of proceedings previously considered, even if counsel identifies a new argument or point from that record. The case emphasizes that changed circumstances must involve facts that arose or were discovered after the previous determination, not merely a new legal argument based on the same facts. The judgment also serves as an important reminder to prosecutorial authorities about their duty to handle bail applications with reasonable promptitude given their status as liberty issues requiring urgent attention. The case demonstrates judicial intolerance of repeated postponements and dilatory conduct by state counsel in bail matters.