Garikayi Gwaze v The State

The applicant was convicted by the Magistrates Court Bindura of one count of rape and sentenced to an effective term of imprisonment of 12 and half years. He appealed against both conviction and sentence. In June 2010, he filed an unrepresented application for bail pending appeal with the High Court, which was dismissed. The applicant subsequently filed a second application for bail pending appeal, this time represented by counsel, on the basis of changed circumstances. The alleged changed circumstances included: (1) the applicant was now represented; (2) the initial application was partly dismissed because the state believed the appeal would be heard quickly; (3) new revelations showed the appeal was unlikely to be heard soon; (4) delay in hearing the appeal by the court; and (5) multiple court visits showed no reasonable ground to believe the appeal would be heard soon, certainly not during 2011.

• Whether a second application for bail pending appeal is properly before the High Court when based on changed circumstances after an initial application was dismissed
• Whether the provisions of section 123(1) of the Criminal Procedure and Evidence Act [Cap 9:07] permit an application for bail pending appeal on the basis of changed circumstances
• The proper interpretation of the proviso to section 123(1)(b) regarding applications based on facts not placed before the judge or magistrate who determined the previous application

The point in limine was dismissed. The court ruled that the application was properly before the court.

Section 123(1) of the Criminal Procedure and Evidence Act [Cap 9:07] permits the bringing of an application for bail pending appeal on changed circumstances. The proviso to subsection (b) allows a further application for bail pending appeal to be made if based on facts which were not placed before the judge or magistrate who determined the previous application and which may have arisen or been discovered after that determination. This remedy is available to applicants who have been convicted by a magistrates court.

The court noted that in S v Dzawo 1998 (1) ZLR 536, the Chief Justice's remarks regarding section 123 appear to have been obiter dicta, as that case was concerned with appeals under section 121 and not section 123. The court observed that the Chief Justice's remarks in Dzawo were concerned with the rights of an applicant to approach either the magistrates' court or the High Court for bail pending appeal initially, and cannot be read to mean that there is no application on changed circumstances where an applicant convicted in a magistrates court is seeking bail pending appeal.

This case clarifies the interpretation of section 123(1) of the Criminal Procedure and Evidence Act [Cap 9:07] in Zimbabwean law, confirming that applicants convicted by magistrates courts may bring subsequent applications for bail pending appeal based on changed circumstances or newly discovered facts. The judgment provides important guidance on the procedural requirements for bail pending appeal applications and distinguishes between section 121 (appeals against bail refusal) and section 123 (bail pending appeal after conviction). It limits the application of S v Dzawo to its specific context and confirms the availability of the changed circumstances remedy under section 123.