Mary Mubaiwa v The State

The applicant, Mary Mubaiwa, was on bail facing four outstanding criminal matters before the Magistrates Court: (a) contravention of Section 35 of the Marriage Act (convicted with appeal pending); (b) assault; (c) money laundering; and (d) attempted murder. Her bail conditions included surrendering her passport to the Clerk of Court. The applicant became severely ill and was admitted to hospital where a specialist surgeon recommended amputation of her right arm due to gangrene. The applicant refused to consent to the amputation, wishing to seek a second medical opinion in South Africa. Through her mother as deponent, she brought an urgent chamber application under Rule 60(6) of the High Court Rules, 2021, seeking temporary release of her passport to travel to South Africa for medical treatment for six weeks, suspension of bail conditions during her absence, and postponement of her pending criminal cases.

• Whether the urgent chamber application was properly brought before the High Court or should have been brought before the Bail Court
• Whether section 126 of the Criminal Procedure and Evidence Act requires applications for alteration of bail conditions to be brought before the judge or magistrate who originally granted bail
• Whether the High Court has inherent jurisdiction to hear matters involving protection of human rights including the right to life
• Whether a Bail Court exists as a specialized division of the High Court

The point in limine was upheld. The application was declared improperly before the court and was removed from the roll. No order as to costs.

Applications for alteration of bail conditions must be brought before the judge or magistrate who originally granted bail in terms of section 126 of the Criminal Procedure and Evidence Act [Chapter 9.07]. The Bail Court is a specialized subdivision of the High Court established under section 171 of the Constitution and section 46A of the High Court Act. Even urgent applications involving human rights must be brought before the proper court with jurisdiction over the subject matter. An urgent chamber application under Rule 60(6) of the High Court Rules cannot be used to circumvent the statutory procedure for varying bail conditions set out in section 126 of the Criminal Procedure and Evidence Act.

The court expressed reservations about the reliefs being sought on an urgent application without a provisional order which were final in nature. The applicant had insisted that one can apply for a final order through an urgent chamber application and referred to Air Namibia Proprietary Limited v Mawumba & Ors HH 520/18, but the court did not elaborate on this issue having found the application was improperly before it. The court also noted that the applicant had not attached the bail orders with specific conditions despite the fact that it was those very conditions being sought to be altered, nor had the applicant stated whether the judge or magistrate who granted bail was available or not.

This case clarifies the proper procedure for applications to vary bail conditions in Zimbabwe. It confirms that the Bail Court exists as a specialized subdivision of the High Court and that applications for alteration of bail conditions should be brought before the judge or magistrate who originally granted bail in terms of section 126 of the Criminal Procedure and Evidence Act. The judgment emphasizes the importance of approaching the correct court or division even in urgent matters involving human rights considerations such as access to medical treatment. It provides guidance on the jurisdictional framework for bail-related applications within the court system.