On 19 August 2010, the Applicant was driving a commuter omnibus (registration no. ABN 5586) along Khami Road when he stopped in the middle of the road near a railway line flyover and started calling for passengers. He was arrested and taken to Bulawayo Central Traffic Section where a breath test was conducted. He was found to have an alcohol/blood level of 179 mg alcohol per 100ml of blood. The Applicant was convicted by the magistrates court sitting at Western Commonage, Bulawayo of drunk driving in contravention of section 55(2) of the Road Traffic Act [Chapter 13:11] and sentenced to 24 months imprisonment. He was also prohibited from driving motor vehicles other than a commuter omnibus or heavy vehicle for 6 months and from driving a commuter omnibus or heavy vehicle for life. The trial magistrate conducted an inquiry into special reasons under section 85(2)(a) read with section 88A of the Act but found none. The Applicant submitted that he had been stressed after his wife had taken their child to hospital after the child had eaten a flower, and was trying to get to his employer to ask for time off. The Applicant appealed against sentence only and applied for bail pending appeal.
The Applicant was admitted to bail pending appeal on the following conditions: (1) The Applicant be admitted to bail pending appeal; (2) The Applicant shall deposit a sum of US$100.00 with the Assistant Registrar of the High Court in Bulawayo; (3) The Applicant should reside at No. B5573 Old Pumula, Bulawayo until the appeal is finalised.
Where a court arrives at an effective prison sentence of 24 months or less, the court is enjoined to consider community service as an option to imprisonment, even where the statute provides for a mandatory sentence. The sentencing policy of Zimbabwean law requires courts to consider community service where the effective prison term is 24 months or less. In applications for bail pending appeal, the main determining factors are the applicant's prospects of success on appeal and the interests of justice (whether the release of the applicant will prejudice the administration of justice).
The court made observations regarding the interpretation of 'special reasons' under section 55(1) of the Road Traffic Act, emphasizing that special reasons must relate to special circumstances surrounding the commission of the offence and do not include special circumstances peculiar to the offender. The court indicated that an applicant would have serious difficulties convincing an appeal court that a voluntary decision to drink alcohol, drive a commuter omnibus, and call for passengers in the middle of the road had anything to do with personal family circumstances such as a child swallowing a flower.
This case is significant in Zimbabwean jurisprudence as it clarifies the relationship between mandatory minimum sentences and community service options. The judgment establishes that even where a statute provides for a mandatory sentence, if the effective sentence falls within the community service grid (24 months or less), trial courts must still consider community service as an alternative sentencing option. This represents an important sentencing principle that balances statutory mandatory sentencing provisions with rehabilitative and community-based sentencing alternatives. The case also provides guidance on bail pending appeal applications, particularly in relation to assessing prospects of success on appeal in sentencing matters.