Solomon Makumbe and Silas Pfupa v The State

The two applicants were charged with treason as defined in section 20(1) of the Criminal Law (Codification and Reform) Act. They were admitted to bail on 26 February 2016 by the High Court of Zimbabwe, subject to specific conditions including: payment of US$200 each, being surrendered into the custody of Colonel Charles Mashava (Director of Military Intelligence) and residing at Zimbabwe National Army Cranborne Barracks, reporting to CID Law and Order Harare Central Police Station every Monday and Friday between 0600-1800 hours, surrender of passport (second applicant), and non-interference with investigations or witnesses. The applicants subsequently filed this application on 6 September 2016 seeking to vary the bail conditions, particularly to allow them to reside at their homes in Chitungwiza and Budiriro, and to reduce reporting requirements to once per month. They based their application on the fact that Colonel Mashava was assigned to official duties in China for 11 months from 31 August 2016, and also referred to the admission to bail of another person, Borman Ngwenya.

• Whether a change in circumstances (the temporary absence of the custodian on official duties) justifies variation of bail conditions
• Whether the bail conditions requiring residence at military barracks and bi-weekly reporting were still appropriate given changed circumstances
• Whether the granting of bail to a co-accused on different terms justifies variation of existing bail conditions

The application to vary the bail conditions was dismissed.

The binding legal principle established is that variation of bail conditions requires a material change in circumstances that actually affects the accused's ability to comply with the conditions or demonstrates that the conditions are no longer appropriate. Where an accused is placed in official custody, the temporary absence of the named custodian on official duties does not constitute sufficient grounds for variation, as custody is held in an official capacity rather than depending on the personal presence of the individual officer. The grant of different bail terms to other accused persons is not, in itself, a basis for seeking alteration of existing bail conditions.

The court observed that while it is desirable to have applicants tried as expeditiously as possible, the delay involved in the case was not out of the ordinary. The court also noted, without making a definitive ruling on the point, that applicants were permitted to travel within the country including visiting their families, and that security personnel accompanying them did not necessarily enter their houses during family visits.

This case is significant in Zimbabwean criminal procedure law as it establishes important principles regarding the variation of bail conditions. It demonstrates the court's reluctance to vary bail conditions absent a material change in circumstances that actually affects the applicant's ability to comply with those conditions. The judgment clarifies that when a person is placed in official custody, the temporary absence of the named official does not constitute grounds for variation, as custody is held in an official rather than personal capacity. The case also illustrates that differences in bail conditions granted to co-accused persons do not automatically justify variation of existing bail orders.