The applicant was initially granted bail on 2 September 2020 under case number B1359/20 on charges of incitement to commit public violence. He was subsequently arrested twice more: on 3 November 2020 for defeating or obstructing the course of justice (case B1941/20), and later for making false statements prejudicial to the state (case B95/21), being granted bail on 27 January 2021. The bail conditions imposed in the first case applied to all subsequent cases. The applicant was required to report twice weekly (Mondays and Fridays) at Highlands Police Station between 6am and 6pm. He had previously been granted temporary release of his passport to travel to South Africa for medical treatment in December 2021, which he complied with by returning and surrendering his passport. The applicant applied to have the reporting conditions completely removed, citing health risks from COVID-19 exposure. He produced medical evidence showing he suffered from dyslipidaemia, worsening pre-diabetes, and was overweight, with high cardiovascular and metabolic risk for contracting COVID-19. Statistical data showed COVID-19 cases had increased dramatically from 1,201 new cases with 25 deaths in September 2020 to 19,512 new cases with 854 deaths in January 2021. The government had imposed a level four lockdown via Statutory Instrument No. 10/2021 on 2 January 2021, limiting gatherings to two persons and restricting movement.
The court altered the bail conditions as follows: (1) Reporting conditions were reduced from twice weekly (Mondays and Fridays) to once fortnightly on Fridays between 6am and 6pm at Highlands Police Station; (2) The applicant was required to make an additional bail deposit of ZW$10,000; (3) The altered conditions applied to all three cases (B1359/20, B1941/20, and B95/21) with no additional recognizances required for the latter two cases.
Section 126 of the Criminal Procedure and Evidence Act allows for alteration of bail conditions based on any facts that were not placed before the judge or magistrate who granted bail, regardless of when those facts arose or whether they constitute 'changed circumstances' in the strict sense. The interests of justice test in section 126 is the determinant factor, requiring a balancing of the accused's rights to personal freedom and health against the need to safeguard the due administration of justice. Courts have a responsibility to support government public health policy, including COVID-19 prevention measures, when exercising discretion in bail matters, provided this is consistent with constitutional obligations and the interests of justice. An applicant's past compliance with bail conditions, medical vulnerabilities to COVID-19, dramatic increases in infection rates, government-imposed lockdown measures, and medical advice to limit human contact are all relevant factors in determining whether to alter bail reporting conditions. However, where an accused faces multiple charges, complete removal of all reporting conditions may not be in the interests of justice, and reduced reporting requirements may be the appropriate middle ground.
The court made several notable observations: (1) General legal propositions without supporting facts are unhelpful to the court and irrelevant where they are not applied to proven or established facts; (2) Where a party seeks to compare an accused's treatment with that of other similarly situated persons, specific facts demonstrating the similarities must be pleaded, not merely asserted as a general proposition; (3) The court criticized the State's counsel for 'cherry-picking' parts of the medical report that supported the State's argument while ignoring other relevant portions; (4) The court expressed agreement with Bilal v Attorney General HH 105/11 that moral or humanitarian considerations have no place in bail jurisprudence as a standalone ground, since every accused denied bail would have such concerns—the focus must be on the accused and the interests of justice, not third parties; (5) The court noted that a judicial officer determines matters by applying the law to proven or established facts, emphasizing the need for proper evidence and pleadings.
This case is significant in South African (and broader regional) jurisprudence for establishing how courts should approach bail condition variation applications during the COVID-19 pandemic. It clarifies the important distinction between applications under section 126 of the Criminal Procedure and Evidence Act (which require only new facts not previously placed before the court) versus applications following bail refusal (which require facts that arose or were discovered after the initial determination). The judgment establishes that the judiciary has a positive role to play in preventing COVID-19 spread and should not grant orders that defeat government public health policy, while still balancing this against individual rights. It demonstrates how courts can exercise discretion within the 'interests of justice' framework to accommodate public health concerns while maintaining oversight of accused persons on bail. The case also reinforces that complete compliance with previous bail conditions is a relevant factor when considering variation applications.