Kholwani Donga v The State

The applicant was charged with one count of murder and six counts of attempted murder. On 9 February 2021, at approximately 01:00 hours, the applicant allegedly proceeded to the complainant's homestead, sprinkled inflammable liquid around a three-bedroom house, and set it on fire. Seven occupants were sleeping inside the house in different rooms. A 75-year-old man suffered serious injuries and died the following day. Six other occupants escaped the inferno. The applicant's initial bail application had been dismissed by the High Court. This was a second bail application based on alleged changed circumstances, brought after the applicant had been in custody for eight months without a trial date.

• Whether the applicant had established changed circumstances warranting a re-hearing of his bail application under section 116(c)(ii) of the Criminal Procedure and Evidence Act
• Whether the delay of eight months in custody without a trial date constituted a changed circumstance sufficient to warrant release on bail
• Whether the applicant's offer to surrender his passport and report regularly to police addressed the flight risk concerns that led to the initial refusal of bail

The application for bail based on changed circumstances was dismissed and the applicant was ordered to remain in custody.

For a subsequent bail application based on changed circumstances under section 116(c)(ii) of the Criminal Procedure and Evidence Act to succeed, the new facts must: (1) not have been placed before the judge who determined the previous application; (2) have arisen or been discovered after the initial determination; and (3) materially change the basis upon which bail was initially refused such that they warrant release without compromising the reasons for initial refusal. Mere passage of time in custody, without more, does not constitute changed circumstances where the original grounds for refusing bail (strong prima facie case and flight risk) remain unaddressed. The new facts must be substantive and related to changing the basis of the initial refusal, not merely the repetition or variation of previously considered factors.

The court made observations that allegations of detention without trial, violation of the right to trial within reasonable time, and violation of the presumption of innocence are "ordinary consequences of incarceration" rather than violations of rights where the applicant has been deprived of liberty "according to procedures established by law." The court also noted that it is a "notorious fact" that the border between Zimbabwe and South Africa is porous, such that surrender of a passport would not be effective in preventing flight. The court observed that the rule against repetitive bail applications is meant to obviate the presentation of the same facts or variants thereof over and over again and helps in achieving finality in bail matters.

This case is significant in Zimbabwean criminal procedure law (applicable in understanding South African bail jurisprudence given the similar legal frameworks) as it clarifies the strict interpretation of 'changed circumstances' in subsequent bail applications. The judgment emphasizes that: (1) courts will not entertain repeated bail applications based on the same or recycled facts; (2) delay in custody alone, even for significant periods, does not constitute changed circumstances if it does not address the original grounds for bail refusal; (3) changed circumstances must materially alter the basis upon which bail was initially refused; and (4) COVID-19-related delays in trial setting are a legitimate explanation that does not automatically favor bail release. The case demonstrates the high threshold required for subsequent bail applications and serves as a safeguard against abuse of court process.