Tonderai Marabwa v The State

The applicant was charged with murder arising from events on 10 December 2017. The state alleged that the applicant strangled his girlfriend (the deceased) with a head scarf and set her ablaze at Esikhosini Guest Lodge in Khumalo, Bulawayo. The parties had met in Bulawayo and booked a room at the lodge. At around 0400 hours, they had a misunderstanding after the deceased indicated she was pregnant and demanded the applicant take her to her family for introductions. The applicant, who had another girlfriend, refused. The applicant allegedly strangled the deceased using her head scarf, placed a mattress on her body, set her ablaze, locked the door from outside and fled. A post mortem examination revealed the cause of death was asphyxia and strangulation. The applicant had first applied for bail on 19 December 2017, which was refused by Bere J on 29 December 2017. The applicant brought this second application for bail on the basis of changed circumstances, arguing that the deceased had now been buried and investigations were complete. A trial date had been set for 24-25 July 2018.

• Whether changed circumstances existed to justify granting bail after an initial refusal
• Whether exceptional circumstances existed in the interests of justice to permit the applicant's release on bail in a matter involving a Schedule 3 Part 1 offence
• The proper interpretation and application of sections 116(c)(ii) and 117(6)(a) of the Criminal Procedure and Evidence Act

The application for bail pending trial on changed circumstances was dismissed.

For a subsequent bail application based on changed circumstances under section 116(c)(ii) of the Criminal Procedure and Evidence Act to succeed, the applicant must adduce facts that were not placed before the judge in the previous application, or new facts that have arisen or been discovered after the initial determination. The mere passage of time, completion of investigations, or burial of a deceased person do not constitute changed circumstances. Changed circumstances must have changed to such an extent that they warrant the release of the accused without compromising the reasons for the initial refusal of bail. Where the evidence against an accused is very strong, particularly in serious Schedule 3 Part 1 offences like murder, and no new material facts have emerged, the interests of justice will be compromised by granting bail.

The court observed that while an accused person is entitled to their defence and is presumed innocent until proven guilty, the court cannot close its eyes to the strength of the state's case when considering whether the interests of justice will be compromised by granting bail. The court noted that the fact that a trial date has been set will not on its own defeat an application for bail pending trial, but the court is required to balance the interests of the applicant against the proper administration of justice. The court also commented that where evidence against an accused person is very strong, the likelihood of absconding is high.

This case provides guidance on the interpretation and application of the "changed circumstances" requirement under sections 116(c)(ii) and 117(6)(a) of the Criminal Procedure and Evidence Act (Chapter 9:07). It clarifies that changed circumstances must involve new facts not previously placed before the court or facts that arose or were discovered after the initial bail determination. The case establishes that mere passage of time, completion of investigations, or events that were foreseeable (like burial of the deceased) do not constitute changed circumstances. It reinforces that courts must balance the accused's liberty interests against the proper administration of justice, considering the strength of the state's case when assessing whether exceptional circumstances exist to warrant bail in serious Schedule 3 Part 1 offences.