Tichaona Katsamba v The State

The applicant was charged with robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act. On 22 November 2014, along Upper East Road, Avondale, Harare, the applicant and two accomplices allegedly robbed commuters while armed with a firearm and knife. They drove a minibus to Coppa Cabbana rank, picked up passengers under the guise of transporting them to Marlborough East, then diverted the route. The applicant allegedly produced a pistol and demanded passengers' bags. The complainant lost a handbag containing US$440 and a Samsung Galaxy S4 phone. The victims were pushed from the moving vehicle. The applicant had previously been denied bail by Mawadze J on 23 April 2015. This second bail application was made on 15 June 2015, seven weeks after the first refusal. The applicant's trial had been postponed six times since 4 May 2015. Investigations revealed the applicant sold the complainant's stolen cellular phone to third parties.

• Whether the second bail application disclosed changed circumstances as required by proviso (ii) to s 116 of the Criminal Procedure and Evidence Act
• Whether the passage of time and multiple postponements constituted fresh facts justifying reconsideration of bail
• Whether the applicant was a suitable candidate for bail considering the seriousness of the charge and evidence linking him to the offence

The application for bail was dismissed.

Where a previous bail application has been refused, a further bail application may only be entertained if based on changed circumstances - facts which were not placed before the court in the previous application and which arose or were discovered after that determination. The passage of time and postponement of trial may constitute changed circumstances. However, even where changed circumstances exist allowing the court to entertain a fresh bail application, the applicant must still demonstrate they are a suitable candidate for bail by rebutting the allegations against them, considering factors including the seriousness of the charge, the strength of evidence linking them to the offence, and potential sentence upon conviction.

The court observed that allegations of police assault leading to implication of co-accused would have been investigated had they been raised before the Magistrates Court at the time of remand. The absence of evidence that such complaints were made to the Magistrates Court undermined the credibility of these allegations. The court also noted that the trial date was only five days away when the application was heard, suggesting the postponements were nearing resolution.

This case demonstrates the application of proviso (ii) to s 116 of the Criminal Procedure and Evidence Act in Zimbabwe, confirming that passage of time and multiple trial postponements can constitute changed circumstances justifying reconsideration of a bail application. However, it also illustrates that meeting the threshold for entertaining a second bail application does not guarantee success on the merits - the applicant must still demonstrate they are a suitable candidate for bail by rebutting the allegations against them, particularly in serious criminal matters.