WILBERT TAWANDA HWAMI
HIGH COURT OF ZIMBABWE
HARARE, 23 April 2021.
Further Application for bail
B Chidenga for the applicant
L Masango for the respondent
KWENDA J: This a further application for bail 116 (c) of the Criminal Procedure and Evidence Act [Chapter 9.07]. The applicant is a facing a charge of robbery as defined in s126 of the Criminal Law Codification and Reform Act [Chapter 9.23] and the matter is pending trial at Harare Magistrates Court. The allegation is that the applicant robbed the complainant of a Honda Fit sometime in February 2021. The alleged robbery took place when the applicant and certain three other persons posed as hikers and were offered a lift by the complainant for High Glen Shopping Centre enroute to Kuwadzana. Two of the passengers dropped along the way near High Glen Shopping centre. Two continued with the journey. At or near the intersection of High Glen and Heany Road the two remaining passengers ordered the complainant to stop. The complainant complied out of fear. When the vehicle stopped the passengers pushed the complainant out the vehicle and drove away in the vehicle. They also took the complaints’ property consisting of a Vivo cell phone and USD84 which was in the car.
The cell phone was recovered from the applicant thereby linking him with the robbery.
The applicant applied for bail before this court in April 2021 under case No B743/21. The application was unsuccessful. This a further application based on when applicant said are changed circumstances. Section 116 (C) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides for further applications and reads as follows: -
“116. Power to admit to bail
Subject to this section and sections 32 and 34, a person may, upon an application made in terms of section 117A, be admitted to bail or have his or her conditions of bail altered
(a) in respect of any offence, by a judge at any time after he or she has appeared in court on a charge and before sentence is imposed;
(b) in respect of any offence, except an offence specified in the Third Schedule, by a magistrate within whose area of jurisdiction the accused is in custody at any time after he or she has appeared in court on a charge and before sentence is imposed:
Provided that, with the personal consent of the Prosecutor General,
a magistrate may admit a person
to bail or alter a person's conditions of bail in respect of any offence;
(c) if he or she is a person whose case is adjourned in terms of section 55 (1) of the Magistrates Court Act [Chapter 7:10] or in respect of whom an order has been made in terms of section 351 (4), by a judge or by any magistrate within whose area of jurisdiction he or she is in custody:
(ii) where an application in terms of section 117A is determined by a judge or magistrate, a further application in terms of section 117A may only be made, whether to the judge or magistrate who has determined the previous application or to any other judge or magistrate, if such application is based on facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or been discovered after that determination;”
The underlining is mine for emphasis. There is no need to name an application in terms of usual provisions, an application based on changed circumstances. The phrase may have been used in cases previously decided by superior courts in the peculiar circumstances of those cases but it must always be borne in mind that providing guidance on what to take into account but it must always be borne in mind that decided cases just interpret and do not amend a legislation. A decided case is important for the principle coming out therefrom. This therefore is simply a ‘Further Bail Application in terms of s116 (C) Criminal Procedure and Evidence Act [Chapter 9:07]. It must be based on either “… facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or been discovered after that determination”.
The applicant justified this application as follows:
“………. applicant applied for bail on 14 April 2021. We refer the court to bail application Case NoB743/21.
The changed circumstances are that 2 weeks has lapsed and it has been held then the passage of time is in itself a change of circumstances.
The state on form 242 indicated when investigation will be completed in two weeks’ time. Two weeks have lapsed and it is not two weeks down the line.
There has been no new or further evidence unearthed due to further investigations. The fact that there are to move implicate evidence (sic) has been found out in further support of the applicant’s armaments that he did not take part in the robbery. His explanation that he bought the cell phone remains reasonable and possible.
As matters stand the state case against the applicant is very weak Your applicant tenders to the state security the form of a vehicle …….”
Clearly the only new factor is that two months has passed since the previous application. The applicant has remedies that are available to an accused person whose trial has been delayed. See sections 163 and 167 A of the Criminal Procedure and Evidence Act, supra. Section 163 reads as follows: -
“163. Accused in magistrates court to be brought for trial at once
Any person to be prosecuted on a criminal charge in a magistrates court shall be brought for trial at the next possible court day.”
Section 167A reads as follows: -
167A. Unreasonable delay in bringing accused to trial
(1) A court before which criminal proceedings are pending shall investigate any delay in the completion of the proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, to the accused or his or her legal representative, to a witness or other person concerned in the proceedings, or to the public interest.
(2) In considering whether any delay is unreasonable for the purposes of subsection (1), the court shall consider all the circumstances of the case and in particular the following
(a) the extent of the delay;
(b) the reasons advanced for the delay;
(c) whether any person can be blamed for the delay;
(d) whether the accused has raised such objections to the delay as he or she might reasonably have been expected to have raised;
(e) the seriousness, extent or complexity of the charge or charges;
(f) any actual or potential prejudice which the delay may have caused to the State, to the accused or his or her legal representative or to any other person concerned in the proceedings;
(g) the effect of the delay on the administration of justice;
(h) the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued.
(3) If after an investigation in terms of subsection (1) the court finds that
(a) the completion of the proceedings is being unduly delayed; or
(b) there has been an unreasonable delay in bringing the accused to trial or in completing the trial, the court may issue such order as it considers appropriate in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice, including an order (
i) refusing further postponement of the proceedings;
(ii) granting a postponement subject to such conditions as the court may determine;
(iii) that the prosecution of the accused for the offence be permanently stayed;
(iv) that the matter be referred to the appropriate authority for an administrative investigation and possible disciplinary action against any person responsible for the delay.
(4) The Prosecutor General may appeal against an order referred to in subsection (3) (iii) as if it were an acquittal of the accused.”
The applicant has not utilised the above provisions to assert his right to be tried without delay. Nothing has changed regarding the circumstances which led to the denial of bail and that the applicant is unlikely to stand trial if released on bail.The application does not meet the requirements for a further bail application as set out in s116 (C) is, of Criminal Procedure and Evidence Act.
In the result the application is dismissed.
Madanhi, Mugadza and Co. Attornies at Law, Applicants legal practitioners