Witness Mahata v Caroline Anne Chigumira N.O. (in her capacity as the presiding magistrate) and Attorney General N.O.

The applicant was granted bail by the First Respondent (presiding magistrate) on 31 December 2003. The police were aggrieved by this decision and on 6 January 2004 questioned the First Respondent and other participants regarding the grant of bail. On 9 January 2004, the First Respondent presided over an application brought under section 126 of the Criminal Procedure & Evidence Act and rescinded her earlier decision, ordering the applicant to be placed in custody. The First Respondent was subsequently arrested and placed on remand on allegations of corruption arising from her handling of this matter. The applicant brought a review application seeking to set aside the decision of 10 January 2004 rescinding bail.

• Whether the First Respondent should have recused herself from presiding over the matter on 9 January 2004 on grounds of reasonable apprehension of bias
• Whether the proceedings constituted a gross irregularity in that section 126 of the Criminal Procedure & Evidence Act was improperly invoked
• Whether new facts, as required by section 126(1), were placed before the court to justify the revocation of bail
• Whether an error of law amounting to gross irregularity justifies review by the High Court

The application for review succeeded. The order of the First Respondent dated 10 January 2004 rescinding bail was set aside. The order of 31 December 2003 granting bail remained in force. The court noted that the proper course for the State would have been to request the High Court to review the proceedings relating to the grant of bail, and the State remained at liberty to lodge review proceedings against the grant of bail on 31 December 2003.

A magistrate cannot invoke section 126(1) of the Criminal Procedure & Evidence Act to revoke bail unless genuine new facts that were not before the court at the original bail hearing are brought to the court's attention. The mere dissatisfaction of the police with a bail decision does not constitute a new fact, as the police attitude existed at the time of the original hearing. A judicial officer must recuse herself from hearing a matter where a reasonable apprehension of bias exists, applying the objective test of whether a fair-minded person would apprehend bias. Where a magistrate has been questioned by police about her handling of a case and subsequently presides over the same matter, this creates a reasonable apprehension of bias. An order made under section 126(1) without new facts being placed before the court constitutes an error of law amounting to a gross irregularity that is reviewable by the High Court.

The court observed that it is hard to contemplate a situation where the court on its own will discover new facts without some outside agency bringing them to its attention, as the court is not in the business of finding or gathering facts but rather considering facts placed before it. The court noted that the proper course for the State to challenge allegedly irregular bail proceedings is to request the High Court to review those proceedings, as a review examines the manner in which a decision was made rather than being an appeal from the decision itself. The court emphasized the fundamental and long-established tradition that courts, not the executive, should decide bail matters, as courts are well-equipped to balance the liberty of the individual (who is presumed innocent) against the interests of the due administration of justice.

This case is significant in Zimbabwean criminal procedure law as it clarifies the proper application of section 126 of the Criminal Procedure & Evidence Act regarding the revocation of bail. It establishes that new facts must genuinely be new and not merely existing facts repackaged or re-presented. The case reinforces the principle that bail decisions are within the exclusive domain of the courts, not the executive or police. It also confirms the application of the reasonable apprehension of bias test in criminal proceedings and emphasizes that judicial officers must recuse themselves where circumstances would create such apprehension. The judgment underscores that the proper mechanism for challenging allegedly irregular bail decisions is through review proceedings, not through misuse of section 126.