The applicant was arrested on 26 July 2009 on allegations of murder and armed robbery together with three accomplices (CRB No. 14/16). He was indicted for trial on 25 January 2012. The trial commenced on 25 January 2017 before Tsanga J, but could not continue after one of the assessors passed away, resulting in an order for the trial to start de novo. The matter was re-set down for trial on 14 May 2020, postponed to 27 July 2020, and then to 28 September 2020. One of the applicant's co-accused, Tendai Jongwe, had been granted bail by the High Court under B 1227/16. The applicant applied for bail based on changed circumstances, which the State opposed, arguing he should have applied before the trial judge.
The application for bail was granted with the following conditions: (1) deposit of $1000-00 with the Registrar of the High Court; (2) residence at 243 Chizunga Road, Epworth, Harare until finalization; (3) reporting at Domboramwari Police Station twice weekly on Mondays and Fridays between 6:00 am and 6:00 pm; (4) no interference with witnesses.
No law precludes a judge from hearing a bail application in bail court simply because the matter has been set down for trial. Under section 116(c)(ii) of the Criminal Procedure and Evidence Act, a further bail application may be made based on facts that were not placed before the previous judge and which arose or were discovered after the previous determination. Prolonged trial delays and postponements through no fault of the accused constitute changed circumstances justifying reconsideration of bail. Once changed circumstances are established, the judicial officer is at large to reconsider whether bail should be granted given the altered scenario or new facts.
The court observed that the State's argument that bail applications should be made before the trial judge once a trial date is set is being made 'far too often in the bail court' but lacks legal foundation. The court noted its agreement with sentiments expressed in Hopewell Chin'ono v The State HH 567-20 regarding the scope of reconsideration once changed circumstances are established. The court also took into account as a relevant consideration that the applicant's co-accused had been granted bail by the court.
This case clarifies important principles in Zimbabwean bail jurisprudence regarding: (1) the jurisdiction of judges to hear bail applications in bail court even where matters have been set down for trial; (2) the interpretation of 'changed circumstances' under section 116(c)(ii) of the Criminal Procedure and Evidence Act; and (3) the principle that prolonged delays in trial commencement through no fault of the accused can constitute changed circumstances justifying reconsideration of bail, particularly where co-accused have been granted bail and the State presents no compelling reasons for continued detention.