Walter Muzembi v The State

### Preamble
1
HH 472-25
HCHCR 4347/25
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WALTER MUZEMBI

versus

THE STATE

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE: 6 & 8 August 2025.

Appeal against refusal of bail pending trial

T K Mandiki with T Mukatera, for the appellant

L Chitanda with F Kachidza, for the respondent

DEMBURE J:

[1]	This is an appeal against the judgment of the Magistrates’ Court dismissing an application by the appellant for bail pending trial on changed circumstances. The court a quo’s judgment was handed down on 14 July 2025. The appellant seeks an order that the appeal be allowed and the decision of the court a quo set aside and substituted with an order admitting him to bail pending trial under case numbers CRB Acc 40/18 and 42/18, subject to the conditions fully outlined in the draft order.

BACKGROUND FACTS

[2]	The appellant is the former Minister of Tourism and Hospitality Industry. He was arraigned before the court a quo in February 2018, facing two counts of theft of trust property as defined in s 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

[3]	In respect of the first count, he was jointly charged with one Aaron Dzingira Mushoriwa. The allegations in respect of that count were that sometime in 2010, the Ministry of Tourism and Hospitality Industry, in its bid to introduce Fan Parks for the 2010 World Cup held in South Africa, initiated a motion to acquire LED Public Viewing Area (PVA) Televisions for the public nationwide. The Ministry secured funding for the acquisitions thereof from the Treasury, which went on to make payments for the purchase of forty (40) LED PVA TV screens from Shanghai Linso Digital Technology Company in China.

[4]	It was further alleged that the 40 LED PVA screens were duly delivered and received by the Ministry. The allegations were further that the appellant, who was then the Minister of Tourism and Hospitality Industry, unlawfully and intentionally disposed of State assets, namely 16 LED PVA screens, by donating, loaning, or hiring them to various institutions and church organisations without approval from the Ministry of Finance.  The said PVA TV screens were valued at US$800,000.00.

[5]	Concerning the second count, the appellant was jointly charged with Aaron Dzingira Mushoriwa and Margaret Mukahanana Sangarwe. It was alleged that sometime in 2011, Zimbabwe and Zambia won the bid to co-host the 20th United Nations World Tourism Organisation (“UNWTO”) General Convention in August 2013. The Ministry of Tourism was tasked to spearhead the fundraising of resources for the preparations and hosting of the event. The Ministry contracted consultants to conduct the fundraising activities and assist in the management of the project for the country to successfully host the event.

[6]	The appellant is said to have written official letters on government letterheads to the corporate world, inviting sponsorship for the UNWTO General Assembly during the period between May 2012 and August 2013. The letters were allegedly used by accused number two and one, Susan Makombe Kuhudzayi, in approaching corporate organisations, and some were sent directly to the intended organisations. A bank account was opened in the name of the consultants’ unregistered company, where funds were paid into, including from Mbada Diamonds.

[7]	It was further alleged that, acting in common purpose, the accused persons purchased three motor vehicles with the funds deposited in the said bank account. The motor vehicles were registered in the name of UNWTO Trust, which the State said was non-existent. In addition, it was alleged that they received another vehicle from Mimosa Mining. It was further alleged that after the completion of the UNWTO General Assembly in August 2013, the appellant and his co-accused persons stole the vehicles by unlawfully converting them to their own instead of surrendering them to the Ministry. The total value of the motor vehicles was US$184,336.00.

[8]	The appellant, along with his co-accused persons, was subsequently granted bail pending trial. The appellant applied for the release of his passport, which he had surrendered as part of his bail conditions to seek medical attention in South Africa in 2018. He was due to attend court on 19 November 2018 under CRB Acc 40/25, while under CRB Acc 43/18, he was to return to court on 4 December 2018. It is common cause that he did not return to the country or attend court on the said dates. Warrants of arrest were issued against him for the default. He was arrested on his return to the country in June 2025.

[9]	On 16 June 2025, he filed an application for the cancellation of the warrants of arrest, explaining that he had defaulted on medical grounds related to his treatment for cancer and other complications in South Africa and Zambia. The application was opposed by the State, which argued that the default was wilful and that no acceptable explanation had been proffered. The court a quo found that the appellant had breached his bail conditions and that he failed to give a reasonable explanation as the period of default was very long (over 7 years). It was further held that it was not proved that for all these years the appellant was bedridden such that he could not travel back to the country to attend court. The court a quo found the appellant to have wilfully defaulted on court appearances and that he could not be trusted with liberty in the circumstances. The court a quo proceeded to confirm his warrants of arrest and revoke his bail in terms of 126(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]. He was, therefore, committed to prison pending trial.

[10]	On 3 July 2025, the appellant filed an application for bail on changed circumstances. The application was opposed by the State. After hearing the matter, the court a quo dismissed the application on 14 July 2025. The court a quo found that his current circumstances did not warrant him to be admitted to bail pending trial, as there was no guarantee that he would stand trial. Aggrieved by this decision, the appellant filed the present appeal on 30 July 2025, seeking to overturn the court a quo’s decision to dismiss his application for bail pending trial on changed circumstances and his admission to bail pending trial.

[11]	The grounds of appeal are as follows:

“a) 	The Learned Magistrate erred by not granting bail in circumstances where he conceded there are changed circumstances.

b) 	In his ruling the learned Magistrate did not consider the defence advanced by Appellant. The court erred in not considering that the High Court found in HC 8663/19 being judgement HH 120/21 that the Appellant did not commit an offense against the state neither did they commit an offense as they only performed their duties professionally.

c) 	The court erred by finding and accrediting the delay in finalising the matter was caused by the Appellant, where even after 7 years the state is not ready for trial.

d) 	The court again erred in placing the Appellant in custody without the prospect of a trial date or indictment. This amounts to pre-trial incarceration and detaining to investigate.

e) 	The court also erred in not considering the additional security in the form of title deeds.”

[12]	The State opposed the appeal and argued that it lacks merit and must be dismissed. The parties advanced their positions in the papers filed of record.

SUBMISSIONS MADE BEFORE THE COURT

[13]	Mr Mandiki, counsel for the appellant, submitted that the court a quo found that there were no changed circumstances. The court a quo did not take into account the issues that had been placed before it, in particular the issue of the title deeds, the reporting conditions appellant had submitted and the defence placed before the court in view of the High Court judgment in HH 120/21. When the court queried whether the issue of the title deeds and the defence arising from the said civil judgment was placed before the court a quo, counsel submitted that the applicant incorporated all the previous proceedings before the court a quo in para 6 of the bail statement attached to the application before it. He argued that the court a quo did not consider the same.

[14]	It was further argued that the court a quo did not consider the judgment in HH 120/21, which stated that no criminal offence had been committed. It should have considered all that, including the bail conditions proposed, such as the bail deposit of US$3,000.00. Counsel went on to argue that the court a quo also erred in finding that the delay for the commencement of the trial of 7 years was attributed to the appellant. He submitted that the State has failed to give him a trial date and is silent on the issue of the date. The appellant is held in detention without any prospects of being tried. He has been hospitalised and is bedridden. Mr Mandiki further submitted that it is common cause that he is in the hands of the State. The State has not given any evidence to rebut that, and it is, therefore, a fact that he is currently bedridden.

[15]	Counsel referred the court to the case of S v Tsvangirai 2003 (1) ZLR 650, where it was held that the court should consider imposing bail conditions to curb the risk of abscondment. The appellant had provided title deeds, an evaluation report of his sister’s property and his passport. The court should at least consider the imposition of those bail conditions. In S v Ndlovu 2001 (2) ZLR 261, it was held that the court should strike a balance between the interests of society and the accused’s right to liberty. The appellant is a fit and proper candidate for bail. The State has not given sufficient reasons for the trial delay. It was held in Chigombe v S HH 16/21 that where title deeds have been tendered, it is the court’s duty to consider them. In this case, these were completely ignored.

[16]	On the other hand, Ms Chitanda, for the respondent, submitted that by and large she would abide by the submissions already filed of record. She argued that the court a quo noted that there was a changed circumstance, but it went further to analyse whether the change was to such an extent that it would warrant his release without compromising the initial bail ruling. The court a quo correctly analysed that, and there was no misdirection.

[17]	It was further submitted that the reason why the other accused were freed was caused by the appellant’s conduct. The charges were withdrawn because the appellant was on an outstanding warrant. The court a quo’s finding was correct. See the similar case of S v Tapfuma HH 2/20, where the trial could not commence due to the non-availability of the applicant’s counsel of choice. In the application for bail on changed circumstances, the court held that the State cannot be held accountable for the applicant’s conduct. The appellant was absent from this jurisdiction for 7 years, and the State could not separate the trials. The appellant cannot argue that the State failed to give him a trial date.

[18]	Ms Kachidza, also for the respondent, further submitted that in an appeal, the court must consider whether there was a misdirection. The issue of title deeds was not a new fact. The title deeds were put before the court a quo in the application for cancellation of the warrants, and in his ruling, the magistrate was aware of the title deeds and held that, in the circumstances, the appellant was absent for about seven years and that the court could not trust him. The application for bail on changed circumstances should be based on new facts. There was no issue of title deeds as the issue had already been canvassed in the previous court a quo’s judgment. The court a quo did not err, as the issues of title deeds and the defence alluded to were not new but were before the court in the initial application for cancellation of the warrants of arrest.

[19]	In his reply, Mr Mandiki argued that there was no averment on the record that the charges against the other accused were withdrawn for the reason of the absence of the appellant. The issues of the title deeds and the defence related to the judgment in HH 120/21 were supposed to have been considered. They were carried into the new application and should have been considered.

THE APPLICABLE LAW

[20]	It is a settled principle of the law that an appellate court will not interfere with the exercise of a discretion by the lower court unless the court is satisfied that there was an irregularity or misdirection by the lower court. The discretion must have been improperly or unreasonably exercised. This legal position was remarkably restated in Chimaiwache v The State SC 18/23, where Gowora JA (as she then was) had this to say:

“The granting of bail involves an exercise of discretion by the court of first instance.  It is trite that this court would only interfere with the decision of the learned Judge in the court a quo if she committed an irregularity or exercised her discretion so unreasonably or improperly as to vitiate her decision. The record of proceedings must show that an error has been made in the exercise of discretion: either that the court acted on a wrong principle, allowed extraneous or irrelevant considerations to affect its decision or made mistakes of fact or failed to take into consideration relevant matters in the determination of the question before it. In Ncube v The State SC 126/01 Sandura JA enunciated the principles mentioned above thus:

“Having said that, I hasten to add that the power of this Court to interfere with the decision of the High Court is rather limited. This point was made in the State v Chikumbirike 1986 (2) ZLR 145 at 146E-F where this Court said:

“The next matter to be decided is whether this Court in hearing the appeal should treat it as an appeal in the wide sense, that is to say, that it is to be decided as if it were a hearing de novo. Once again that matter has been decided in the case of The State v Mahommed 1977 (2) SA 531 (AD) at 541 B-C where Trollip JA said that in an appeal of this nature the Court of appeal will only interfere if the court a quo committed an irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its discretion.”

The same point was subsequently made by this Court in Aitken’s case (supra) at 252E-F as follows:

“While the Judge President, in considering the appeal was at liberty to substitute his discretion for that of the magistrate on the facts placed before the latter, the present appeal is one in the narrow sense. The powers of this Court are, therefore, largely limited.  In the absence of an irregularity or misdirection this Court has to be persuaded that the manner in which the Judge President exercised his discretion was so unreasonable as to vitiate the decision reached”. See State v Barber 1979 (4) SA 218 (D) at 220E-G; State v Chikumbirike 1986 (2) ZLR 145 (S) 146F-G’.

The principle is therefore well established. It follows that in the present appeal, for the decision of the learned judge to be reversed, it must be shown that the learned judge committed an irregularity or misdirection, or that the manner in which he exercised his discretion was so unreasonable as to vitiate the decision made.”

See also State v Ruturi HH 26/03.

ISSUE FOR DETERMINATION

[21]	The sole question the court must determine is whether or not the court a quo misdirected itself or exercised its discretion unreasonably in denying the appellant bail pending trial on changed circumstances.

EXAMINATION

[22]	Applying the above principles, the court must consider whether, from the grounds raised by the appellant, he has established that there was a misdirection or that the court a quo unreasonably or improperly exercised its discretion in denying him bail. In his first ground of appeal, it was argued that the court a quo erred by not granting bail in circumstances where the magistrate had conceded that there were changed circumstances. Indeed, it is not in dispute that the court a quo accepted that the withdrawal of the case against the appellant’s co-accused persons constituted a changed circumstance in his own case. See p 3 of the judgment at p 116 of the record. However, the court a quo rightly could not end there. It then further held that:

“However, this should be taken together with the accused’s conduct during that period. The charges against his co-accused were withdrawn in 2019. Had the accused not absconded court, perhaps he could have also benefited from this withdrawal. However, he absconded trial and was beyond the court's jurisdiction. 
He cannot, therefore, benefit from this withdrawal in relation to his co-accused persons. He needs to put this court into confidence that if he is released on bail, he is not going to abscond again. This court is not convinced that the accused person will stand trial if he is released on bail pending trial at this stage. The current circumstances, in my view, do not warrant that the accused be admitted to bail pending trial because there is no guarantee that he will stand trial. 
Accordingly, the application for bail pending trial on changed circumstances is 
hereby dismissed.”

[23]	It is trite that the mere acknowledgement by a court that there is a new fact or circumstance is not the end in itself. In other words, the existence of new facts or circumstances per se does not automatically result in the applicant being granted bail. Each case is dealt with on its own merits. There is no misdirection if the position is that there are no changed circumstances to warrant admission of an accused to bail. See Mathuthu v The State HH 182/17. The same position was explained in S v Mwamuka SC 69/21 where in para 9, the superior court restated the law as follows:

“[8] In Daniel Range v S HB-127-04 the following was stated at p2 of the judgment:

“In determining changed circumstances the court must go further and enquire as to whether the changed circumstances have changed to such an extent that they warrant the release of a suspect on bail without compromising the reasons for the initial refusal of the said bail application.”

[9] The court in S v Brian Makanya HH15/15 had this to say:

“The applicant bears the onus to produce evidence which satisfies me that exceptional circumstances exist which in the interest of justice permit his release. Even if I accept that there are new circumstances or changed circumstances, I am still obliged to consider all the facts before me, new and old and on that basis decide whether the applicant is a good candidate for bail.”

[24]	What is clear from the above authorities is that the existence of a new fact or circumstance does not mean that the applicant must be admitted to bail. The change must be material and justify the release of the applicant on bail without compromising the previous order refusing bail. The same position was again reiterated in S v Brian Chikanya HH 415/15 at p 2 where the court stated that:

“The applicant bears the onus to produce evidence which satisfies me that exceptional circumstances exist which in the interest of justice permit his release. Even if I accept that there are new circumstances or changed circumstances, I am still obliged to consider all the facts before me, new and old and on that basis decide whether applicant is a good candidate for bail. See S v Petersen 2008 (2) SACR 355 (C).”

[25]	In casu, there is no doubt that the charges against the appellant’s co-accused persons were withdrawn before plea and that issue was not placed before the court a quo in the previous hearing when bail was revoked. It indeed constituted a changed circumstance. But as from the above authorities, it must still be considered in the light of the circumstances of the case as a whole, in particular the reasons for the initial refusal of bail. At the end of the day, it must be in the interests of justice to admit him to bail without compromising the reasons for the previous refusal of bail. In the previous court a quo’s judgment revoking the appellant’s bail and committing him to prison pending trial, the court a quo found that the appellant had wilfully defaulted court for over seven years and the court a quo was not convinced that, given his previous conduct he will stand trial if released on bail pending trial at that stage.

[26]	It is common cause that the appellant was on outstanding warrants of arrest for almost seven years. The court a quo correctly noted that in his explanation, there was nothing to show that he was incapacitated or bedridden for all these years until June 2025, from 2018, which could have made him unable to travel and attend to his trial. As the court a quo initially found, there was no proof that he was bedridden for the duration of the long period from 2018 to June 2025. The medical evidence he submitted explained his medical condition and circumstances from the time he absconded up to May 2019 and then from January 2024. The letter dated 16 January 2019 stated that he was to be under review until May 2019. See p 29 of the record. Then there was a gap from that date until the medical reports from Forest Park Specialised Hospital in Zambia of January 2024 and the other evidence of his medical treatment in Zambia in 2025. Clearly, the evidence was not convincing. Faced with those circumstances where the appellant had absconded from the court for such an extended period as noted in its previous judgment, the court a quo cannot be faulted for concluding that there was no guarantee that he would stand trial if released on bail.

[27]	The conclusions made by the magistrate were well-founded on the evidence before him and the previous reasons for refusing to release him on bail pending trial. The appellant had the same passport he was tendering, yet he defaulted. Taken in the context of the initial reasons for the revocation of his bail and his committal to prison pending trial, I am of the view that there was no misdirection or irregularity in the exercise of the court a quo’s discretion in denying the appellant bail. He had been on outstanding warrants of arrest for a very long time and failed to give an acceptable or reasonable explanation for his default.

[28]	The second ground of appeal should not seriously detain me. The issue raised in that ground is that the court a quo did not consider the defence that in the civil judgment in HH 120/21, this court had found that there was no offence committed. That defence was not pleaded in his application for bail on changed circumstances. It is trite that the grounds for a bail application are set out in the bail statement itself. That is what the State is called upon to traverse in its response. A consideration of the statement filed in support of the application from pp 80-86 and the annexures from pp 88-91 clearly shows that the issue was never pleaded or raised at all in the appellant’s papers founding the application for bail on changed circumstances. The court can only determine an issue arising from pleadings before it or which would have been pleaded in the applicant’s founding papers to constitute new or changed circumstances. In para 6 of the bail statement at p 80, there are no averments for one to conclude that such a defence was placed before the court a quo. There being no reference at all to that defence being a new circumstance in the bail statement, there is no basis, therefore, to allege that the court a quo committed an irregularity or exercised its discretion unreasonably.

[29] 	The grounds of appeal numbers (c) and (d) relate to the issue of the trial delays. I do not accept that there is an irregularity or misdirection to warrant this court’s interference with the decision of the court a quo. The decision to dismiss the application was taken in the context of the reasons for the previous ruling when his bail was revoked. The reasons for that previous decision militate against the admission of the appellant to bail after he had failed to give a reasonable explanation for his default for over seven years. The record clearly shows that the appellant could not be tried as he was a fugitive from justice for about seven years. He only came back to the country in June 2025. The State’s response explained that his absence jeopardised the conduct of the trial in the first place. In that case, where he had absconded from court and failed to convince the court of the reason for his default, surely, he cannot blame anyone. His long absence from the jurisdiction of the court clearly caused the long delay in the finalisation of his case. As held in S v Tapfuma supra, I see no reason to interfere with the magistrate’s factual finding that the appellant had caused the delays to the commencement of the trial. The delays could not, by any stretch of imagination, be entirely blamed on the State.

[30]	In any case, the appellant is not without a remedy. The law allows him to apply for refusal of further remand. However, given the circumstances that the matter could not proceed for over seven years as the appellant himself had defaulted in court, it cannot be said that it was unreasonable for the court a quo to have made the findings it made. The appellant clearly had taken the court a quo for granted. Having made his bed, he must lie on it.

[31]	Finally, the last ground (e) is equally without merit. Mr Mandiki argued that the court a quo did not consider the issue of title deeds, which was before it. That issue was not a new issue that was pleaded in his bail statement from pp 80-86. The said title deeds were filed in court on 16 June 2025 with the affidavit of Nyaradzo Matindike. This was in the application for the cancellation of the warrants of arrest. The issue was, therefore, before the court a quo when it considered revoking his bail and committed him to prison pending trial. See pp 48-58 of the record. If the court a quo, at the time it refused to release him on bail and committed him to prison pending trial, as is now being alleged, did not consider those title deeds, then the appellant ought to have challenged that decision. The same judgment is not what the appellant seeks to impugn before me in this appeal.

[32]	Concerning the application for bail on changed circumstances, I do not agree with Mr Mandiki that he specifically pleaded the issue in para 6 of his bail statement at p 80 of the record. The said para 6 simply stated:

“The applicant then had his bail revoked after voluminous written submission[s] were made for the cancellation of his warrant of his arrest. Same application and response are part of the record. I will not regurgitate the same but incorporate them as part of this application.”

Those averments do not plead the issue of title deeds as a ground for the application for bail on changed circumstances at all. The appellant simply referred to the record for what had transpired in that paragraph. The said para 6 cannot constitute averments pleading the alleged new circumstance relating to title deeds.  It was only in the draft order that a prayer was inserted stating that the appellant “shall surrender title deeds”. A case is not made in the draft order. In any case, para 5 of the draft order relating to such deeds was vague as it simply stated “Applicant shall surrender title deeds” and nothing else. Having failed to plead the issue of title deeds in the application filed on 3 July 2025, the court a quo cannot be faulted for determining only the issues before it. Thus, Uchena JA in Nzara & Ors v Kashumba & Ors SC 18/18, held that:

“There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence led.

The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own.”

The above reasoning equally applies in the proceedings before the court a quo. The court a quo could not ventilate an issue which was not properly pleaded as a new fact or circumstance in the application for bail on changed circumstances. It is only a misdirection or gross irregularity if the court fails to determine an issue that is before it. See Nhimbe Fresh Export (Pvt) Ltd v Prisma Packaging & Anor SC 07/24 & Gwaradzimba N.O. v CJ Petron & Co. Ltd 2016 (1) ZLR 28 (S).

[33]	In any case, the same issue of title deeds was placed before the court a quo when it made the decision to revoke his bail and commit him to prison pending trial. If the court was convinced that, despite the long default, he could be trusted with his liberty again, it would have accepted the surrender of those title deeds. It did not particularly relate to them, but they were before the court a quo at that initial hearing. It cannot, therefore, constitute a new issue or a changed circumstance to warrant his release on bail pending trial. There was, therefore, no misdirection or irregularity that has been established, warranting this court’s interference with the exercise of the court a quo’s discretion in denying the appellant bail pending trial.

DISPOSITION

[34]	The appellant failed to establish that the court a quo misdirected itself or unreasonably or improperly exercised its discretion in denying him bail pending trial on changed circumstances. There is no reason for the court to interfere with the exercise of the court a quo’s discretion in the circumstances. The appeal is completely without merit. It must fail.

Accordingly, it is ordered that:

The appeal be and is hereby dismissed.

Dembure J:   ………………………………………………

Chiturumani Law Chambers, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners