Moses Warning Chademana Mapanga Nhachi v The State

The applicant was standing trial in the Regional Magistrates Court on one count of armed robbery and one count of illegal possession of a firearm in contravention of s 4(1) read with s 4(2)(b) of the Firearms Act [Cap 10:09]. In the first count, the applicant and four accomplices allegedly robbed two police officers manning the Mbare police station gate of their service FN rifle at gunpoint. During the robbery, shots were fired and one officer was grazed on the forehead by a bullet. In the second count, the applicant was found in illegal possession of a firearm upon his arrest. Acting on information, police arrested the applicant at a city hotel and recovered an unlicensed pistol from a bag containing his personal documents. Forensic ballistic tests established that spent cartridges recovered from the robbery scene had been fired from the recovered pistol. The applicant lives in South Africa but resides at 2A Tarlington Close Avondale when visiting Zimbabwe. The applicant had previously been granted bail by the High Court, but this decision was reversed by the Supreme Court in SC 40/09 on grounds of high risk of abscondment. The state had led evidence from 8 witnesses at trial, but the trial magistrate died before completing the trial.

• Whether changed circumstances existed to warrant granting bail after the Supreme Court had previously denied bail
• Whether the weakness of the state's evidence constituted a changed circumstance
• Whether the offer of additional sureties (uncle's title deeds) and affidavits showing connections to Zimbabwe constituted changed circumstances
• Whether the death of the trial magistrate constituted a changed circumstance warranting bail

The application for bail was dismissed.

For an applicant to be granted bail on the basis of changed circumstances after a superior court has denied bail, there must be genuine material changes in the circumstances that formed the basis of the original refusal. The progression of a trial and the leading of state evidence does not constitute changed circumstances where that evidence maintains or strengthens the state's case against the accused. The death of a trial magistrate, while unfortunate, does not constitute a changed circumstance warranting bail where the substantive grounds for denying bail (such as flight risk and strength of evidence) remain unchanged. The offer of additional sureties and affidavits showing connections to the jurisdiction, when these matters could have been presented earlier, do not constitute sufficient changed circumstances to warrant a reversal of a Supreme Court decision denying bail.

The court observed that it must be careful not to usurp the functions of the trial court by predetermining the case, as the trial court is best suited to determine the case after hearing and weighing all the evidence. Bhunu J noted that 'it is a notorious fact that people from this country can easily jump the border into other countries without any passport' (citing the earlier Supreme Court decision). The court also made the general observation that 'Justice must be pursued to its logical conclusion despite the trial magistrate's demise' and that 'no one should be allowed to take advantage of that occurrence to circumvent the ends of justice.' The judge deliberately gave a 'very truncated summation of the facts' to avoid being seen as predetermining the case.

This case is significant in Zimbabwean criminal procedure law as it clarifies the threshold for establishing 'changed circumstances' in renewed bail applications following a Supreme Court refusal of bail. It demonstrates that the mere progression of a trial and leading of state evidence does not constitute changed circumstances if that evidence actually strengthens rather than weakens the state's case. The judgment also establishes that unfortunate procedural developments such as the death of a trial magistrate should not be exploited to circumvent justice or secure bail when the substantive reasons for denying bail remain valid. The case reinforces the principle that courts will not predetermine trial outcomes when assessing bail applications and emphasizes the importance of pursuing justice to its logical conclusion despite procedural setbacks.