Obvious Mlauzi v The State

The applicant was convicted of stock theft after pleading guilty. He was sentenced to the mandatory minimum sentence of 9 years imprisonment as prescribed by law, there being no special circumstances. The applicant did not contest his conviction but noted an appeal against sentence on constitutional grounds, arguing that the mandatory minimum sentence was inhuman and degrading and violated the declaration of rights in Zimbabwe's new constitution. He applied for bail pending this constitutional appeal.

• Whether the applicant should be granted bail pending appeal against sentence
• Whether a constitutional challenge to mandatory minimum sentences constitutes sufficient grounds for bail pending appeal
• Whether mandatory minimum sentences for stock theft are unconstitutional under Zimbabwe's new constitution as being inhuman and degrading
• Whether prospects of success on a purely technical/constitutional point warrant granting bail pending appeal

The bail application pending appeal was dismissed. The applicant was required to continue serving his 9-year mandatory minimum sentence while pursuing his constitutional appeal.

A convicted person properly sentenced in accordance with existing law is not entitled to bail pending appeal merely on the basis of a constitutional challenge to mandatory minimum sentencing where: (1) the conviction is not contested; (2) the sentence complies with the law as it stands; (3) binding precedent has upheld the constitutionality of such sentences; and (4) the prospects of success on the constitutional challenge are remote. The existence of a technical constitutional point alone, without relation to the merits of the conviction and sentence, does not create an entitlement to bail pending appeal.

The court made several non-binding observations: (1) That Zimbabwe's Supreme Court would likely be persuaded by South African constitutional jurisprudence upholding mandatory minimum sentences rather than the Namibian position striking them down, as South African authorities largely constitute the basis for judicial decisions in Zimbabwe. (2) That even if the Constitutional Court were to strike down mandatory minimum sentences (described as "the wildest of scenarios"), this would not mean the applicant would avoid imprisonment entirely, only potentially receive a different sentence. (3) That examining the development of jurisprudence shows South African authorities constitute the basis for decisions more than any other jurisdiction. (4) The court's characterization of the constitutional challenge as having "quite remote" prospects of success.

This case is significant in Zimbabwean jurisprudence as it addresses the constitutionality of mandatory minimum sentences under Zimbabwe's new constitution (post-Lancaster House). The court indicated that despite constitutional changes, mandatory minimum sentences are likely to be upheld as constitutional, following precedent from Chichera v AG and persuasive South African jurisprudence. It also establishes principles regarding bail pending constitutional appeals, holding that purely technical constitutional challenges with remote prospects of success do not warrant bail when the conviction is proper and sentence lawful under existing legislation. The case demonstrates Zimbabwe's courts' inclination to follow South African constitutional jurisprudence over other jurisdictions like Namibia on similar issues.