Gift Moffat v The State

On 2 February 2021, the applicant Gift Moffat and his co-accused Brown Mubaiwa, together with three accomplices (Anold Kwarira, Costa Basiyawo, and Cain Gambara), allegedly hatched a plan to rob the complainant Zhang Guanghui. The applicant allegedly drove a Mazda Attenza (registration AFB 2234) as the getaway vehicle. Four accused persons, armed with two pistols and catapults, entered the complainant's residence by scaling the wall. They manhandled and tied up the complainant and five other Chinese nationals, robbed them of 600 grams of gold, cellphones, a gold chain, and US$10,000 (total value US$50,000). The applicant was arrested after police used a tracking device in a stolen cellphone to locate his residence. Police recovered the getaway vehicle, a power bank stolen from the complainant, and US$200 from the applicant. The applicant's first bail application was dismissed by Munangati-Manongwa J on 11 March 2021. He then applied for bail based on changed circumstances under section 116(c)(ii) of the Criminal Procedure and Evidence Act, citing: the lapse of time, failure to secure CCTV footage or arrest other co-accused, and the fact that his co-accused Mubaiwa had been granted bail on 1 April 2021. The applicant claimed Kwarira was his brother-in-law who ordinarily resided in South Africa and had stayed with him during the festive period. He claimed he unknowingly picked up Kwarira and his friends when their vehicle broke down, not knowing they had committed a robbery.

• Whether there were changed circumstances justifying a fresh bail application under section 116(c)(ii) of the Criminal Procedure and Evidence Act
• Whether the unavailability of CCTV footage and lapse of time constituted changed circumstances
• Whether the grant of bail to a co-accused constituted changed circumstances requiring equal treatment
• Whether it is in the interests of justice to admit the applicant to bail pending trial

The application for bail pending trial based on changed circumstances was dismissed.

For a bail application based on changed circumstances under section 116(c)(ii) of the Criminal Procedure and Evidence Act to succeed, the applicant must demonstrate facts which were not placed before the judge who determined the previous application and which arose or were discovered after that determination. The changed circumstances must have changed to such an extent that they warrant the release of an accused on bail without compromising the reasons for the initial refusal. The unavailability of evidence such as CCTV footage at the bail hearing stage does not constitute changed circumstances where other evidence still links the accused to the offence, as such evidence is crucial at trial rather than at the bail stage. The grant of bail to a co-accused does not automatically entitle another accused to bail where their circumstances are materially distinguishable based on their respective levels of involvement in the offence, the evidence against them, and their individual flight risks.

The court made observations about the importance of avoiding discrimination in bail determinations, referring to S v Amos & Another 2001 (2) ZLR 225, which holds that where multiple persons involved in the same offence apply for bail, it is not proper for one to be released and others kept in custody unless good and sufficient reason is shown for the distinction. However, the court emphasized this principle does not override the need for individualized assessment of each accused person's circumstances. The court also noted with concern that Mubaiwa, who had been granted bail, had already violated his bail conditions by failing to report as ordered, observing that while the applicant should not pay for his co-accused's misconduct, it illustrated that the motivation to abscond was not farfetched. The court observed that the rule in section 116(c)(ii) requiring changed circumstances is meant to obviate the presentation of the same facts or variants thereof over and over again in a bid to obtain bail and helps achieve finality in bail determinations.

This case illustrates the strict approach Zimbabwean courts take to applications for bail based on changed circumstances under section 116(c)(ii) of the Criminal Procedure and Evidence Act. It clarifies that: (1) changed circumstances must be material and not merely the passage of time or unavailability of certain evidence at the bail stage; (2) the grant of bail to a co-accused does not automatically entitle another accused to bail where their circumstances are distinguishable; (3) courts will consider the relative culpability and connections of each accused person individually; (4) evidence crucial for trial (such as CCTV footage) need not be produced at bail hearings and its unavailability does not constitute changed circumstances; (5) connections to fugitives and foreign jurisdictions remain relevant factors in assessing flight risk; and (6) the seriousness of the offence and strength of evidence remain material considerations even in changed circumstances applications.