Thembinkosi Mathuthu v The State

The applicant faced charges of murder committed in the course of an armed robbery. The firearm used in the commission of the offence was recovered from the applicant. The applicant was identified by witnesses at an identification parade. He had previously applied for bail before Zhou J on two occasions (5 August 2015 and 20 July 2016), and both applications were dismissed. The trial scheduled for 23 May 2016 failed to commence due to the indisposition of the applicant's pro-deo counsel. The applicant was indicted on 30 September 2016. The trial was again postponed on 7 November 2016 due to non-availability of witnesses, specifically a key witness who had not been located but was subsequently found. The applicant filed this bail application on 10 November 2016 on the basis of changed circumstances, citing the delays in bringing the matter to trial.

• Whether the passage of time and delays in commencing trial constituted changed circumstances warranting admission to bail
• Whether the applicant discharged the burden under s 115(c)(2)(a)(ii)(A) of the Criminal Procedure & Evidence Act to show on a balance of probabilities that it is in the interests of justice to be released on bail
• Whether the applicant satisfied the more onerous burden under s 117(b)(a) of adducing evidence of exceptional circumstances permitting release on bail for Part 1 Third Schedule offences
• The interplay between the constitutional right to trial within a reasonable period and pre-trial detention

The application for bail pending trial was dismissed. The Registrar was directed to forward a copy of the judgment to the Prosecutor General to note the court's observations and concerns regarding the undertaking to bring the applicant to trial.

The passage of time and delays in commencing trial do not automatically constitute changed circumstances warranting the grant of bail in serious criminal cases. An applicant seeking bail on changed circumstances for a Part 1 Third Schedule offence bears the burden under s 117(b)(a) of the Criminal Procedure & Evidence Act to adduce evidence of exceptional circumstances which in the interests of justice permit release on bail. Where the State case remains strong and has not been weakened by the passage of time, and where the indictment has not lapsed, the mere delay in bringing the matter to trial without more does not satisfy this burden. Each case must be determined on its own merits.

The court made important observations regarding the State's obligations to prosecute accused persons within a reasonable time. Chitapi J emphasized that accused persons cannot be incarcerated indefinitely without trial and have a constitutional right to have their cases prosecuted within a reasonable period. The court noted that s 160 of the Criminal Procedure & Evidence Act provides a safeguard by requiring prosecution within 6 months of indictment unless failure is attributable to circumstances beyond the Prosecutor-General's control. The court warned the Prosecutor General about the importance of fulfilling undertakings made to the court regarding bringing accused persons to trial, and directed that a copy of the judgment be forwarded to the Prosecutor General. The court stressed the importance of proper tracking and monitoring of serious cases to safeguard the interests of justice, noting that applicants are entitled to justice and to demand it.

This case clarifies the application of bail provisions in Zimbabwe for serious offences listed in Part 1 of the Third Schedule to the Criminal Procedure & Evidence Act. It emphasizes that: (1) the passage of time alone does not automatically constitute changed circumstances warranting bail; (2) the burden remains on the applicant to show exceptional circumstances for Part 1 Third Schedule offences; (3) courts must balance the interests of justice with the constitutional right to trial within a reasonable period; and (4) the prosecution has a duty to bring accused persons to trial within the indictment period unless circumstances beyond their control prevent it. The case also demonstrates judicial oversight of prosecutorial conduct and the protection of both state interests and accused persons' rights.