Jacob Ngarivhume v The State

Jacob Ngarivhume was charged with incitement to commit public violence under s 187(1)(a) of the Criminal Law Codification and Reform Act as read with s 36(1)(a). He was initially refused bail by the Magistrate Court but was granted bail on appeal by Musithu J on 22 September 2020. The bail conditions included: depositing ZWD$50,000; residing at a specified address; surrendering his passport; refraining from posting on his Twitter handle; and reporting three times weekly (Mondays, Wednesdays, Fridays) at Waterfalls Police Station. In December 2020, he applied to reduce the reporting frequency, which was dismissed by Chikowero J. On 28 January 2021, he filed a second application seeking to reduce reporting frequency and to have his passport released, citing the worsening COVID-19 pandemic (level 3 lockdown imposed on 2 January 2021 via SI 10/2021), his compliance with bail conditions for 4-5 months, and business needs requiring travel.

• Whether the applicant could bring a second application for alteration of bail conditions under s 126 of the Criminal Procedure & Evidence Act after a previous application was dismissed
• Whether the COVID-19 pandemic and lockdown regulations constituted circumstances justifying alteration of bail conditions
• Whether the proper test under s 126 requires 'changed circumstances' or whether the court need only consider what is 'necessary or advisable in the interests of justice'
• Whether reporting conditions should be reduced from three times weekly to once weekly
• Whether the applicant's passport should be released

a) The application for reduction of reporting frequency was granted. Paragraph 7 of the bail order was varied to require reporting once weekly on Fridays between 6 a.m. and 6 p.m. at Waterfalls Police Station (instead of three times weekly on Mondays, Wednesdays, and Fridays). b) The application for release of the applicant's passport was dismissed.

Section 126 of the Criminal Procedure & Evidence Act does not require 'changed circumstances' in the sense required by ss 116(c)(ii) and 123(1)(ii) for subsequent bail applications. Under s 126, a court may alter, add to, or cancel bail conditions if the judge or magistrate is of the opinion that it is 'necessary or advisable in the interests of justice', and may consider any circumstances—new, old, or existing at the time bail was granted. The court has a constitutional duty to protect the right to life (s 48) and may adapt bail conditions to account for public health emergencies such as the COVID-19 pandemic and government lockdown measures. The efficacy of a bail order is achieved by the package of bail conditions as a whole, not by any single condition.

The court noted its disagreement with the dicta in Tungamirai Madzokere and Others v State HH 53/13 that compliance with bail conditions merely shows those conditions are working as a restraint. Chitapi J observed that this reasoning is 'too narrow' and fails to recognize that it is the totality of bail conditions, not any single condition, that ensures non-abscondment. The court also emphasized that the judiciary, as an arm of government deriving authority from the people (s 162 of the Constitution), must play its part in curbing life-threatening pandemics like COVID-19 without compromising the administration of justice. Courts should consider 'COVID-19 adapted or conscious' bail conditions where appropriate. The court noted that the bail order incorrectly stated it was granted by Chitapi J when it was actually granted by Musithu J, though this error had no effect on the determination.

This case is significant in Zimbabwean criminal procedure for: (1) clarifying the distinction between the 'changed circumstances' test for subsequent bail applications under ss 116 and 123 versus the broader discretion under s 126 for alteration of existing bail conditions; (2) establishing that courts can consider the COVID-19 pandemic and public health measures when exercising discretion to alter bail conditions; (3) affirming the judiciary's constitutional duty under s 44 to protect the right to life (s 48) by adapting bail conditions to minimize health risks during a pandemic; and (4) rejecting the narrow approach that compliance with bail conditions merely shows those conditions are working, instead recognizing that the totality of conditions ensures compliance.