Webster Nyaruviro v The State

The applicant was arrested on 12 July 2017 and charged jointly with Max Bloomton with contravening section 82(1) of S.I. 362/90 as read with section 128(b) of the Parks and Wildlife Act [Chapter 20:14] as amended by section 11 of the General Laws Amendment Act No. 5 of 2011. The two accused were found in possession of raw ivory in Hillside, Bulawayo. The applicant was previously denied bail by Takuva J on 31 August 2017 on the grounds that he was not a good candidate for bail. Two months later, the applicant filed a fresh bail application based on alleged changed circumstances. The trial had been scheduled to commence on 10 August 2017 but did not proceed because the applicant made an application for referral to the Constitutional Court to determine the constitutionality of the section under which he was charged. This application was dismissed by the magistrates' court as frivolous or vexatious.

• Whether three months' delay in the commencement of trial constitutes changed circumstances warranting reconsideration of bail
• Whether an application for constitutional referral constitutes changed circumstances for bail purposes
• Whether delay caused by the accused person's own conduct can constitute changed circumstances
• Whether exceptional circumstances exist to justify bail for a Third Schedule offence
• The application of the principle 'nemo ex proprio dolo consequitur actionem' (no one benefits from their own wrong) in bail applications

The application for bail pending trial was dismissed.

An accused person cannot rely on delay in commencement of trial as a changed circumstance justifying reconsideration of bail where the delay has been caused by the accused person's own conduct. The common law principle 'nemo ex proprio dolo consequitur actionem' (no one maintains an action arising from their own wrong) applies to bail applications - an accused cannot benefit from delays occasioned by his own fault. While the Prosecutor General bears responsibility for prosecution-driven delays and cannot keep an accused in custody while sitting on charges, an accused who causes delay through his own actions (such as pursuing dismissed or frivolous constitutional challenges) cannot benefit from that self-created delay.

The court observed that in criminal prosecutions in Zimbabwe, they are prosecution-driven, with the Prosecutor General being dominus litis in such matters. The court noted that where there are unreasonable delays in bringing accused persons to trial, the Prosecutor General bears sole responsibility and cannot share the blame with anyone - "it is his cross to carry." The court emphasized that the Prosecutor General "cannot have his cake and eat it at the same time" and "cannot sit on the charges while at the same time keeping the accused person in custody." The court also noted that the only change since the previous bail judgment was that the applicant was now approaching the court alone without his co-accused, implying this was insufficient to constitute a material change of circumstances.

This case is significant in Zimbabwean criminal procedure law as it establishes important principles regarding bail applications based on changed circumstances. It clarifies that: (1) accused persons cannot benefit from delays they themselves have caused in the commencement of their trials; (2) the common law principle preventing persons from benefiting from their own wrongs applies to bail applications; (3) mere lapse of time does not automatically constitute changed circumstances if the accused is responsible for the delay; and (4) frivolous or dismissed constitutional challenges do not constitute changed circumstances warranting reconsideration of bail. The judgment reinforces the balance between an accused's constitutional right to be brought to trial within a reasonable time and the principle that parties cannot benefit from their own delaying tactics.