Trust Maanda
Legal Position
WHEN bail is denied by the court, a further application for bail can be made to the same court on the basis that circumstances since the date of the refusal of bail have changed in favour of the accused.
Section 116 (c )(ii) of the Criminal Procedure and Evidence Act provides that: “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.”
It is therefore trite and elementary in our jurisdiction that where bail has been previously denied by the same court, subsequent bail applications can only be entertained on the basis of changed circumstances.
The facts on the changed circumstances must relate to the reasons why bail was previously denied.
They must be material to the issue in the sense that they must militate against the grounds upon which bail was refused in the first place.
Changed circumstances, in this context, do not refer to simply anything that has changed since the accused was denied bail.
For instance, if he had been denied bail on account of being a flight risk, there must be something to show that the facts have since then changed so that the court might come to a different conclusion on that matter.
Passage of time constitutes a changed circumstance which entitles him to be released on bail, but that is not sufficient in itself.
In the case of Thembinkosi Mathuthu v The State HH 182/17, Justice Chitapi stated thus: “The passage of time does not constitute an automatic entitlement to bail. Each case is dealt with on its own merits . . .”
Whatever amount of time has lapsed, that on its own is not a strong enough reason for bail to be granted.
The lapse of time should be accompanied by or connected to a change in the circumstances that led to the original denial of bail.
The passage of time can be tied to the weakening of the State case from the time bail was denied.
For example, the State may have relied on a certain set of circumstances, but which would have changed with the passage of time, and having the effect of weakening the State case.
If the argument of the State was that there are further investigations yet to be done to strengthen the State case, then the absence of additional evidence over a considerable period of time will constitute changed circumstance.
The court will enquire if the absence or presence of the new evidence tends to incriminate or exculpate the appellant in the commission of the offences with which he is charged.
If new facts tend to compromise the State case, then that constitutes changed circumstances. If there is new incriminating evidence, the State must produce it.
If the investigations continue over a long period, the inference to be drawn is that the State case was not strengthened, but rather weakened by the failure to detect any further incriminatory evidence against the accused.
If the refusal of bail was on the basis of risk of abscondment due to the strength of the State case, that must now be examined on the basis that, although the investigation endured a long period from the date of accused’s arrest, the allegations of the State were not strengthened during the relevant period and, if not weakened, remained, at best, unsubstantiated.
The weaker the case against the accused, the much less is the temptation to resort to flight.
If witnesses who had not provided their written statements and that was a ground of refusal of bail because of fear of interference with them, their writing of statements can constitute changed circumstances.
A change of circumstance must relate to the circumstance on which bail was denied initially.
In State v Stouyannides 1992 (2) ZLR 126 (SC), the court held that the amount of time which had elapsed had to be considered together with the crucial factor of the lack of any proven progress in the investigations in this case.
The Attorney-General acts at his peril if he fails to put before the court specific facts which show that the State case has been strengthened after a long time has elapsed.
In that case the appellant had shown on a balance of probabilities that the interests of justice now required that he be freed on bail, subject to extremely onerous conditions.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646 or [email protected].
