Madalisto Ranch v The State

The applicant was convicted of murder on 2 August 2017 and sentenced to 20 years imprisonment by the High Court for killing his wife. He subsequently applied for leave to appeal out of time under case No. CON 207/18, which was granted (judgment HH 674/18). He also filed a bail application pending appeal under case No. B 1272/18, which was initially dismissed because no valid appeal was pending at that time. After being granted condonation and leave to appeal, the applicant filed a notice and grounds of appeal under case No. SC 844/18. He then made a fresh application for bail pending appeal, arguing that changed circumstances existed since his previous bail application was dismissed. The applicant appeared in person before the court.

• Whether the applicant established changed circumstances to warrant a fresh bail application pending appeal pursuant to section 123(1) proviso (ii) of the Criminal Procedure & Evidence Act
• Whether the mere filing of a notice of appeal after being granted leave to appeal constitutes changed circumstances
• Whether the applicant's proposed arguments on appeal constitute changed circumstances justifying a fresh bail application
• Whether the interests of justice favoured granting bail pending appeal to a convict serving 20 years for murder

The application for bail pending appeal founded on changed circumstances was dismissed.

A subsequent application for bail pending appeal can only be properly entertained if based on facts which were not placed before the judge who determined the previous application and which have arisen or been discovered after that determination, in accordance with section 123(1) proviso (ii) of the Criminal Procedure & Evidence Act. The mere filing of a notice of appeal after being granted leave to appeal does not constitute changed circumstances, as it does not alter the judgment or evidence on record that formed the basis of the previous bail determination. Changed circumstances do not arise from a realization of a missed point or argument that could have been raised in the initial application. The functus officio doctrine prevents a court from reviewing its own previous determination on bail pending appeal absent genuine changed circumstances. Being granted leave to appeal does not translate to an automatic right to bail pending appeal, as the court must still consider factors under section 117 of the Criminal Procedure & Evidence Act, including the interests of justice.

The court observed that instead of exhausting his energies pursuing bail pending appeal which the court would not grant absent changed circumstances, the applicant should focus his energies on ensuring the speedy disposal of his appeal. The court also noted that if dissatisfied with the High Court's judgment on appeal, the applicant could, subject to following proper procedures, appeal to the Supreme Court. The court reiterated its earlier finding that even assuming the Supreme Court might be persuaded to alter the verdict from murder to culpable homicide based on provocation, the applicant would not escape serving a substantially long term of imprisonment, and therefore it would not be in the interests of justice to admit him to bail pending appeal.

This case is significant in Zimbabwean criminal procedure law (applicable to South African jurisprudence by analogy) as it clarifies the threshold for establishing 'changed circumstances' in subsequent bail applications pending appeal. It reinforces the principle that: (1) the mere filing of a notice of appeal after being granted leave does not constitute changed circumstances; (2) the functus officio doctrine prevents a court from reviewing its own previous bail determination absent genuine changed circumstances; (3) applicants cannot repackage arguments that could have been raised in the initial bail application as 'changed circumstances'; (4) being granted leave to appeal does not create an automatic right to bail pending appeal; and (5) the interests of justice remain paramount in bail pending appeal applications, particularly for serious crimes like murder where substantial custodial sentences are inevitable even if the conviction is altered on appeal.