Lincoln Tendai Mubaki v The State

On 20 December 2010 at around 0230 hours, the applicant and co-accused Mcniel Mbombi, allegedly acting in common purpose with accomplices still at large, drove to Total Garage Entumbane, Bulawayo in a Toyota Hiace minibus (registration AAZ 9823) belonging to the applicant. They allegedly attacked two guards with logs and iron bars, tied them up with wire, used explosives to blast open a safe, and stole US$15,000 and R10,000 in cash. The applicant was arrested on 18 October 2011 after being implicated by his co-accused Mbombi. His first bail application was denied by Mathonsi J on 4 November 2011 under case number HC 284/11. The applicant then brought a second bail application based on alleged changed circumstances, presenting an affidavit from Mbombi dated 7 December 2011 wherein Mbombi claimed he had falsely implicated the applicant after being assaulted by police, and that he only knew the applicant as a cross-border trader. The applicant also submitted an affidavit from his wife Abigal Tafira denying that explosives were found at their residence.

• Whether there were changed circumstances warranting reconsideration of a bail application previously denied
• What constitutes 'changed circumstances' sufficient to justify a second bail application
• Whether an affidavit from a co-accused exonerating the applicant constitutes changed circumstances
• Whether the risk of absconding remained high given the serious nature of the charges

The second bail application was dismissed.

Changed circumstances for purposes of a second bail application must refer to genuine circumstances surrounding the case which did not exist at the time of the first bail application. An affidavit from a co-accused purporting to exonerate an applicant does not constitute changed circumstances, as such evidence can only be properly tested under cross-examination at trial. Defense evidence that challenges the State's case does not amount to changed circumstances but is matter for determination at trial. Where the State has presented strong allegations and the accused faces serious charges with potential lengthy imprisonment, the risk of absconding remains high and bail should be refused absent genuine changed circumstances.

The court noted several credibility concerns regarding the co-accused's affidavit, questioning why only the applicant's name came to mind, whether there was proof of their alleged business relationship regarding buying and selling clothes, and suggesting it was possible the two accused hatched a plan to exonerate each other. The court observed that improper identification parade procedures and challenges to the State's evidence are matters to be raised in defense at trial, not in bail proceedings. The judgment referenced Edward Moris Barrons v The State SC 61/2002 as establishing the principle that bail can be applied for on the basis of changed circumstances, but emphasized that each case depends on its own merits.

This judgment clarifies the test for 'changed circumstances' in successive bail applications in Zimbabwean criminal procedure. It establishes that merely presenting new affidavits or defense evidence does not constitute changed circumstances - such circumstances must be genuine alterations in the factual matrix that existed at the time of the first application. The case demonstrates judicial vigilance against attempts to manipulate the bail process through manufactured evidence, particularly affidavits from co-accused seeking to exonerate each other. It reinforces that matters of credibility and defense evidence are properly tested at trial, not in bail proceedings. The judgment also reaffirms that where serious charges carry potential lengthy imprisonment, the risk of absconding remains a paramount consideration in bail determinations.