Mike Matanga v The State

The applicant was arraigned before the High Court in 2005 and was tried, convicted and sentenced to 15 years imprisonment for murder with constructive intent. The applicant and deceased were husband and wife in a marriage characterized by acrimony which culminated in the murder of the deceased whose body was recovered in a suitcase floating in a dam. Evidence adduced at trial showed it was the accused who caused the demise of the deceased. In 2010 the applicant filed an application for leave to appeal which was dismissed on 29 March 2010. In 2012 the applicant made an application for determination by the Supreme Court and was directed to seek the remedy of appealing against conviction and sentence provided he had leave to appeal granted. That application for leave to appeal out of time was again dismissed. In 2013 the applicant filed an application for bail pending appeal when there was no pending appeal. On 1 February 2013 the applicant made another application for bail pending appeal which was dismissed. The current application before the court was for leave to appeal on changed circumstances.

• Whether there were changed circumstances warranting leave to appeal out of time
• Whether the applicant could reopen his case to adduce fresh evidence as a basis for changed circumstances
• Whether the application for leave to appeal on changed circumstances had any merit

The application for leave to appeal on changed circumstances was dismissed on 9 October 2013.

An application for leave to appeal on changed circumstances must be based on genuinely new circumstances that were not available or known at the time of the original trial or previous appeal applications. Changed circumstances do not include: (1) an applicant's own reassessment of evidence that was already before the trial court; (2) allegations that evidence was fabricated when such arguments were already considered and rejected at trial; or (3) attempts to adduce fresh evidence that could have been presented at trial. An application for leave to appeal on changed circumstances cannot be used as a mechanism to reopen and re-litigate matters that have already been properly determined by the courts.

The court observed that the applicant appeared to be a "busy body who is on a fishing expedition to try his chance to confuse events so as to get attention and a breather in the face of no prospects of success on appeal." This comment suggests judicial concern about vexatious or frivolous applications being brought to waste court time when an applicant has exhausted legitimate avenues of appeal. The court noted the procedural history showing multiple unsuccessful attempts by the applicant to challenge his conviction through various mechanisms, which indicated a pattern of attempting to find any possible avenue to challenge a properly determined conviction rather than pursuing genuine legal remedies based on merit.

This case illustrates the proper approach to applications for leave to appeal on the basis of changed circumstances in Zimbabwean criminal procedure. It demonstrates that changed circumstances cannot consist merely of a reassessment of evidence already considered at trial, nor can an applicant use such applications as a vehicle to introduce fresh evidence that was available at trial. The case reinforces the principle that applications for leave to appeal must be based on genuine new developments and not on attempts to re-litigate matters already determined by the courts.