The applicant faced a charge of murder arising from allegations that he and others threw stones, empty bottles and other missiles at uniformed officers, one of which struck Inspector Petros Mutedza who was pronounced dead on arrival at hospital. On 10 October 2011, he applied for bail pending trial together with co-accused. Justice Mwayera dismissed the bail application on 20 October 2011 on the basis that the applicant was a flight risk, noting that he held a valid passport, was well-travelled, had foreign contacts, went in and out of the country during the period police were looking for him, and did not surrender to police despite being aware they were arresting MDC-T youth leadership for murder and that he, as National Youth Leader, was wanted. On 16 November 2011, the applicant filed a second bail application alleging changed circumstances under section 116(c)(ii) of the Criminal Procedure and Evidence Act.
The application for bail based on changed circumstances was dismissed.
For a bail application based on changed circumstances under section 116(c)(ii) of the Criminal Procedure and Evidence Act, the applicant must demonstrate that: (1) the facts were not placed before the court at the initial bail hearing; and (2) the facts either arose or were discovered after the determination of the initial application. The use of 'and which' in the statute indicates the legislature intended both requirements to be cumulative. Facts that were known to the applicant at the time of the initial application but not presented to the court, whether deliberately or mistakenly omitted, do not constitute changed circumstances. The section does not permit applicants to present their case in a piecemeal fashion or to remedy deficiencies in their initial application. More stringent bail conditions offered by an applicant cannot constitute changed circumstances as they cannot be said to have 'arisen or been discovered' after the determination. An applicant cannot benefit from his own ineptitude in failing to present all relevant evidence at the initial bail hearing.
The court observed that the court hearing the changed circumstances application has no power to review the correctness of the finding made by another court of similar jurisdiction in the initial bail application. The court noted that if offers of more stringent bail conditions were to be taken as changed circumstances, this would open floodgates to litigation, which is mischief the legislature sought to address. The court also made observations about evidence that appeared to have been fabricated, including a video showing the applicant at a rally on 5 October when he was in custody from 4 October (clearly doctored), and a motor vehicle offered as surety that was registered on 2 November 2011 while the applicant was in custody, with the original owner being a mental patient with no apparent authority to transfer the vehicle. The court stated 'the court does not assist those that are sleeping' in emphasizing that applicants must be diligent in presenting their full case initially.
This case provides important guidance on the interpretation and application of section 116(c)(ii) of the Criminal Procedure and Evidence Act in Zimbabwean law, establishing strict parameters for what constitutes 'changed circumstances' in bail applications. The judgment makes clear that changed circumstances cannot include facts that were known to the applicant at the time of the initial application but not presented, nor can they include additional evidence or detail regarding facts already before the court. The case reinforces the principle that applicants must present their full case at the initial bail hearing and cannot remedy their own shortcomings through subsequent applications dressed up as changed circumstances. This prevents abuse of process and repeated bail applications based on substantially the same facts.