The applicants were charged with murder committed during a robbery. On 14 January 2021, Mwayera J dismissed their initial bail application (HMT 19/21) on various grounds including the seriousness of the offense and likelihood of absconding. On 18 October 2021, police wrote to the National Prosecuting Authority indicating they were still awaiting forensic test results with no fixed date for completion. The applicants then filed a fresh bail application based on changed circumstances, arguing that the delayed forensic tests created inordinate delay and there was no need for continued incarceration. The State did not oppose the application.
The application for bail on changed circumstances was dismissed.
The binding principle is that delayed forensic test results do not constitute changed circumstances justifying bail where: (1) the initial bail refusal was based on multiple factors beyond the forensic evidence; (2) the forensic tests are not the sole source of evidence relied upon by the prosecution; and (3) the outstanding tests have not yet absolved the accused. Changed circumstances cannot be established merely by the passage of time waiting for evidence that may ultimately incriminate the accused.
The court observed that if the forensic tests had been completed and absolved the applicants, that would surely have established changed circumstances. The court also commented that the State's concession not to oppose the application was not well placed given the circumstances of the case, suggesting that prosecutors should carefully consider the substantive merits rather than making concessions based solely on delays in evidence gathering.
This case is relevant to Zimbabwean (not South African) criminal procedure, particularly regarding the threshold for establishing 'changed circumstances' in subsequent bail applications. It demonstrates that delays in obtaining forensic evidence, standing alone, do not necessarily constitute changed circumstances where the initial bail refusal was based on multiple factors. The case also illustrates that the State's failure to oppose a bail application does not automatically entitle an accused to bail where substantive grounds for refusal exist.