The State v Kisimusi E Dhlamini and Others

Three respondents were arrested and charged with crimes against the state (insurgency, banditry, sabotage or terrorism in contravention of s 23(1)(a)(i)(ii) of the Criminal Law (Codification and Reform) Act), or alternatively aggravated malicious damage to property. They appeared before KARWI J for their initial bail application on 19 January 2009, who denied bail on grounds that: (1) the offences were serious; (2) the applicants were likely to commit similar offences; and (3) the applicants were likely to interfere with witnesses. On 10 February 2009, all seven applicants again approached the Court arguing changed circumstances. OMERJEE J granted bail to three co-accused but denied bail to these three respondents on the basis that the state had a strong case against them. The respondents unsuccessfully appealed to the Supreme Court. They then approached HUNGWE J on 9 April 2009, arguing that the formation of the inclusive government constituted changed circumstances warranting bail. HUNGWE J granted bail on stringent conditions. The state then sought leave to appeal against this decision.

• Whether the formation of the inclusive government constituted a new 'changed circumstance' warranting a fresh bail application when this issue had already been raised before previous judges
• Whether leave to appeal should be granted against a decision to grant bail
• The test for granting leave to appeal in criminal matters
• Whether a subsequent bail application can be entertained on grounds that were already argued before a previous judge of the same court

Application for leave to appeal granted. The decision of HUNGWE J granting bail was suspended pending the appeal to the Supreme Court.

Where a bail application has been refused by a court, and a particular ground or circumstance has been raised and argued before that court (or a subsequent bail application before the same court), that same ground cannot constitute a 'changed circumstance' warranting a fresh bail application before another judge of the same court. If a party is dissatisfied with how a judge dealt with a particular submission, the proper remedy is to appeal, not to make a fresh application to a different judge while misrepresenting that the ground is new. Leave to appeal should be granted where there is a reasonable prospect that the appeal court will take a different view, and where a decision was based on incorrect or misleading facts presented to the court, there is a reasonable prospect that an appeal court seized with the correct facts might reach a different conclusion.

BHUNU J made important observations about the difficulties of presiding over a case determined by a fellow judge of the same court, noting that his task was made lighter by the fact that he was not being asked to determine the correctness of his colleague's judgment, but only the applicant's prospects of success on appeal. The judge also emphasized the critical importance of legal practitioners thoroughly checking their facts before presenting them in court, noting that the presentation of incorrect facts may lead to disastrous legal consequences. In this case, the judge observed that persons who may constitute a danger to the state and society could have been released from prison based on wrong facts. Conversely, the judge noted that granting bail on wrong facts may unduly prejudice respondents because they may have been deserving of bail on other legitimate grounds such as delay, passage of time, and lack of progress in the state case. The judge described the argument that the inclusive government was incomplete before OMERJEE J but complete before HUNGWE J as 'idle double talk' given the categorical submissions made before OMERJEE J that the new inclusive government was already in place.

This case is significant in Zimbabwean criminal procedure for establishing important principles regarding successive bail applications. It clarifies that parties cannot circumvent an unfavorable bail decision by making repeated applications to different judges of the same court on grounds that were already raised and rejected, merely by characterizing those grounds as 'changed circumstances'. The judgment emphasizes the duty of legal practitioners to present accurate facts to the court and demonstrates the serious consequences that may flow from misleading the court - including the potential release of persons who may constitute a danger to the state and society, or conversely, the continued detention of persons who may deserve bail on other legitimate grounds. The case also illustrates the application of the test for leave to appeal in criminal matters and the operation of s 121 of the Criminal Procedure and Evidence Act regarding appeals against bail decisions.