UNKNOWN (Applicant is a freelance journalist and documentary film-maker, Respondent is the State)

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1
HH 427-21
B 1552/21
X REF CASE B 1359/20
CRB ACC 77/20
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Application for alteration of bail conditions

D Coltart, for the applicant
A Muziwi, for the respondent

CHIKOWERO J: This is an application for alteration of bail conditions to enable the applicant to uplift his passport from the Clerk of Court so that he is able to travel to South Africa to deliver a keynote address at a journalism event on 14 August 2021 and for the temporary suspension of his reporting conditions for the duration of his 7 day stay in that country.

The applicant is a free-lance journalist and documentary film-maker.

This court admitted him to bail on three separate matters all involving alleged contraventions of different sections of the Criminal Law (Codification & Reform) Act [Chapter 9:23], “the Code.”

The first matter is on the main charge of incitement to commit public violence as defined in s 187(1)(a) as read with s 36(1) (a) of the Code. The alternative charge is incitement to participate in a gathering with intent to promote public violence, breach of the peace or bigotry as defined in s 37(1)(a) of the Code.

In the second matter the applicant is charged with defeating or obstructing the course of justice as defined in s 184(1)(c) of the Code.


The third matter is a charge of publishing or communicating false statements prejudicial to the State as defined in s 31(a)(iii) of the Code.

On 2 September 2020 this court admitted applicant to bail in respect of the first matter. The bail conditions were that:

- he deposits ZWL$10 000 with the Clerk of Court of the Regional Court in Harare.
- he surrenders his passport to the Clerk of Court
- his surrenders his title deeds to Lot 1 of Lot 5 Lot D of Colne Valley of Reitfontein measuring 4047 square metres held under Deed of Transfer 11950/2001 to the Clerk of Court
- he continues residing at 34 Drew Road. Chisipite, Harare until the matter is finalised
- he should not post on his Twitter handle or create any new twitter account for the use to incite the holding of mass demonstrations for whatever purpose until the matter is finalised
- he should report at Highlands Police Station every Monday and Friday between 6 a.m. and 6 p.m.

On 20 November 2020 this court ordered that the bail conditions in respect of the first matter applied in respect of the second matter. The only additional bail condition was that the applicant should not use his tweet platform or account or any other platform or account to disseminate messages which undermine, defeat or obstruct the course of justice explicitly or implicitly.

In the same manner, the bail conditions in the first matter were carried over to apply to the third matter. However, the applicant was ordered to pay the sum of $20 000 to the Clerk of Court as additional recognisance.


On 16 December 2020 this court ordered the temporary release of the applicant’s passport and concomitant suspension of the reporting conditions for a period of twenty-one days. This was to enable the applicant to travel to South Africa to seek medical attention.

On 11 February 2021 the court altered his reporting conditions. Instead of reporting every Monday and Friday his conditions were relaxed to the extent that he was required to report once every fortnight.

The instant application is predicated on the applicant’s need to travel to South Africa again, this time in connection with his work as a journalist. In his bail statement, the applicant states that he has been invited to give the keynote address at the South African National Editors’ Forum (SANEF)’s prestigious Nat Nakasa Journalism Awards Gala Dinner on 14 August 2021. He says the event will focus on “the impact of COVID-19 on the work of journalists and the important role media have played.” A copy of the invitation letter is attached to the bail statement.

Mr Muziwi, for reasons not material to my decision, called the invitation letter “a piece of paper which anybody could write.” The invitation letter is not signed. It does not bear the date-stamp of the South African National Editors’ Forum despite the letterhead suggesting that it emanated from that office and was written by one Hopewell Radebe, the Office and Projects Manager of the South African National Editors’ Forum.

Sitting as a court of law, I am unable to place any reliance on the purported invitation letter. An unsigned “business letter” is not a letter. Assuming that the South African National Editors’ Forum indeed exists, my view is that it certainly issues duly signed correspondence bearing an official date-stamp.

I am aware that s 117A(4)(b) of the Criminal Procedure & Evidence Act [Chapter 9:07] speaks to the informality of bail proceedings. They are more in the nature of an enquiry rather than the formal court proceedings where the strict rules of evidence would apply. Even then, I do not think that the intention of the legislature in enacting that provision was to give a bail court the discretion to determine a matter relating to bail on what effectively amounts to nothing more than a piece of paper.

Section 126(1) of the Criminal Procedure & Evidence Act [Chapter 9:07] reads as follows:

“126 Alteration of recognisances or committal of person on bail to prison
(1) Any judge or magistrate who has granted bail to a person in terms of this part may, if he is of the opinion that it is necessary or advisable in the interests of justice that the conditions of a recognisance entered into by that person should be altered or added to or that that person should be committed to prison, order that the conditions of bail be altered or added to or commit the person to prison, as the case may be…”

Purely on the facts, my view is that the applicant has failed to place any evidence before me to prove that he was invited to South Africa to give the alleged keynote address. It matters not that the respondent did not oppose the application on the merits, choosing instead to rely on procedural and jurisprudential grounds to resist the application.

The duty to apply the provisions of s 126(1) of the Act rests on the shoulders of the court. The respondent’s position is relevant but not decisive.

Although the issue was not squarely before the Supreme Court in Chiwenga v The National Prosecuting Authority and Anor SC 17/21 my reading of that judgment is that it proceeds from the premise that an application for temporary release of a passport and concomitant suspension of reporting conditions falls within the parameters of s 126(1) of the Act. Temporary release of a passport held as a bail condition is alteration of a bail condition. Temporary suspension of a reporting condition is alteration of a bail condition. It should not matter that the alteration is for a short period. Section 126(1) of the Act reveals the legislature’s intention that bail conditions and bail orders are not cast in stone. What Parliament has required the court to do is to assess the facts of each case and then determine whether to alter or add to bail conditions or commit a person on bail to prison if the court is of the opinion that it is necessary or advisable in the interests of justice to do so. It follows that I do not agree with Mr
 Muziwi when he argues that the present application is incompetent. I hold a different view from that expressed by this court in Kazhanje v S HH 276/20 and Chitukutuku v S HH 277/20.

I think the legislature deliberately decided to use the word “alter” in s 126(1) instead of “amend”. The latter word was used in the old s 114(1) of the then Criminal Procedure & Evidence Act [Chapter 59]\(^1\). Unlike an amendment of bail conditions, an alteration of bail conditions (which may be temporary) may still result in the bail conditions reverting to their original state or form after a specific period without the court making any other order during the intervening period. In saying this, I accept that there should be many cases where alteration of bail conditions would have the same meaning and effect as amendment of such conditions. The conclusion that I have reached in this matter renders it unnecessary to deal with the other grounds on which the application was argued. It suffices to observe that even if I had found that the applicant had been invited to South Africa, he may still have had difficulty in persuading me that it was necessary or desirable to alter the bail conditions to allow him to uplift his passport and temporarily suspend the reporting conditions on his mere undertaking that he would not abscond trial coupled with his compliance with this court’s order of 20 December 2020. The applicant did not offer any additional security in light of the fact that the relief that he sought was temporary. He did not pray for the cancellation of the reporting condition. He did not pray for the permanent release of his passport. This tends to suggest that he accepts that it is necessary or desirable in the interests of justice that he needed to offer additional security if he were to be allowed to temporarily up-lift his passport and to obtain a suspension of the reporting condition for the period that he would have been in South Africa.

In the result, the application for alteration of the bail conditions be and is dismissed.

\(^1\) S v Mambo 1992 (1) ZLR 245 (H)
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