Sheefeni V the State (CA 25-2011) 2015 NAHCNLD 32 (24 July 2015)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

APPEAL JUDGMENT Case no CA 25/2011 In the matter between:

PAULUS SHEEFENI 1ST APPELLANT

HAMUNYELA KAVELA 2ND APPELLANT and

THE STATE RESPONDENT

Neutral citation: Sheefeni v The State (CA 25-2011) [2015] NAHCNLD 32 (24 July 2015)

Coram: CHEDA J and JANUARY J

Heard on: 17 April 2015

Delivered: 24 July 2015

Flynote: Criminal Procedure ─ Appeal ─ Application for condonation ─ No proper grounds of appeal before court ─ Late noting of appeal ─ No prospects of success ─ Application for condonation dismissed ─ Appeal removed from the roll. Summary: The appellants noted their Appeal out of time against the sentence of 8 (eight) years’ imprisonment. They did not advance grounds of appeal but only pleaded for a reduction in the sentences alluding to facts which aroused after they were imprisoned. The court found that there was no proper appeal before court and addition that there are no prospects of success. The Appeal was struck from the roll.

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1. The applications for condonation by each of the Appellants are refused.

2. The Appeals are removed from the roll.

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APPEAL JUDGMENT

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JANUARY, J (CHEDA, J concurring)

[1] The appellants lodged appeals in this matter out of time and are both applying for condonation. Their appeals were initially against both convictions and sentences but they have both in the meantime withdrawn the appeals against their convictions. The Respondent is opposing the application for condonation and submitted that before an appeal court should entertain an appeal there should be a valid notice of appeal.

[2] The appellants appeared in person and the respondent was represented by Mr. Matota.

[3] Respondent submitted that they should know what the grounds of appeal are and in the absence of any ground the appeal should be struck from the roll.

[4] The appellants were convicted of housebreaking with intention to rob and robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977. They were each sentenced to 8 (eight) years imprisonment on 13 August 2010. The appellants drafted a joined notice of appeal on 23 August 2010 and filed it on 19 November 2010 with an affidavit explaining the delay.

[5] Both appellants subsequently on 17 April 2015 stated in court that they wish to only appeal against sentence. On 11 May 2015 first appellant filed a written plea for the reduction of his sentence and second appellant a similar plea on 08 May 2015. They maintain that the first notice of appeal was wrongly against both conviction and sentence. It is therefore certain that the appeals are only against sentence.

[6] It is by now well established that for an Application for condonation for the late noting of an appeal to succeed, there are two requirements which an Appellant must satisfy. Firstly, that there must be a reasonable explanation for the delay in filing the notice late and secondly, there must be reasonable prospects of success. Before the court considers the requirements however, there must be a proper appeal before the court. This principle was emphasized by Maritz J (as he then was);

“ Rule 67(1) of the magistrates' courts Rules requires that convicted persons desiring to appeal under s 309(1) of the Criminal Procedure Act 51 of 1977, 'shall within 14 days after the date of conviction, sentence or order in question, lodge with the clerk of the court a notice of appeal in writing in which he shall set out clearly and specifically the grounds, whether of fact or law or both fact and law, on which the appeal is based '. The noting of an appeal constitutes the very foundation on which the case of the appellant must stand or fall.

Practitioners are reminded that the scheme envisaged in Rule 67 is designed to facilitate the fair and expeditious adjudication of appeals. It contemplates, for

3 example, that the court of appeal will have the benefit of the magistrate's reasons specifically addressing the grounds of appeal given at a time when the proceedings are still relatively fresh in his or her mind. The Court will not allow those rules to be deviated from without good cause.”1

[7] Both the appellants did not advance grounds of appeal on their sentences in their initial notices of appeal and subsequently. They are now advancing facts which aroused after they were sentenced to be considered by this court. I appreciate that the appellants are lay persons. The record reflects that their appeal rights were explained and that they understood. There is however no reflection on record of what was explained. The Appellants indicated that they did not understand the explanation and because they were imprisoned, had difficulty to find assistance. I accept this explanation.

[8] I have considered the sentences of 8 (eight) years imprisonment in order to decide if there are prospects of success on appeal. The approach by a court of appeal against sentence is set out in S v Shapumba 1999 NR 342 (SC) by Strydom CJ as he then was, at p344 I-J and 345 A-B as follows:

“ In this regard it must be accepted that sentencing falls primarily within the discretion of the trial Court and that a Court of appeal would only interfere with the exercise of such discretion 'where it is clear that the discretion of the trial Court was not exercised judicially or reasonably . . .' Du Toit Commentary on the Criminal Procedure Act at para 31 - 28. What is regarded as an unreasonable or injudicious exercise of such discretion has been laid down in the form of guidelines by the Courts over many years. Thus a Court of appeal would be entitled to interfere on appeal with a sentence imposed where the trial Court has materially misdirected itself on the facts or the law or committed an irregularity or where the sentence imposed is startlingly inappropriate or induces a sense of

1S v KAKOLOLO 2004 NR 7 (HC) the Headnote and p8 and p10

4 shock or is such that a striking disparity exists between the sentence imposed by the trial Court and that which the Court of appeal would have imposed had it sat in first instance. B (See S v Rabie 1975 (4) SA 855 (A); S v Holder 1979 (2) SA 70 (A); S v Vries 1996 (2) SACR 638 (Nm) and S v Brand 1998 (1) SACR 296 (C) and S v Kibido 1998 (2) SACR 213 (SCA).)”

[9] Maritz , J as he then has quoted with approval the remark of De Wet CJ in S v Myute and Others; S v Baby, 1985 (2) SA (CkS) at 62 D-G:2

“Magistrates should never lose sight of the fact that robbery is a most serious crime. The offence consists of the two elements of violence and dishonesty. Normally an individual can avoid situations which lead to violence and the danger of him being assaulted by taking the necessary precautionary measures. Similarly he can take steps to guard against his property being stolen. It is, however, a different matter when it comes to robbery. The victim cannot take precautions against robbery. In his day to day living he visits friends, goes to work and goes shopping. This is usually when robbers strike. Robbers often roam the townships in gangs, attacking innocent people, depriving them of their property and almost invariably injuring the victims, sometimes seriously. The persons robbed are more often than not women or elderly people who cannot defend themselves. It must also be remembered that robbery is always a deliberate planned crime.”

The victims in this case were women.

[10] The offense committed by the appellants is undoubtedly serious and prevalent throughout Namibia. It calls for a deterrent sentence. I find the sentence of 8 (eight) years imprisonment imposed on each accused not disproportionate or startlingly shocking or inappropriate. I also do not detect a misdirection or error in relation to the sentence and accordingly, the following is the order;

[11] 1. The application for condonation by each of the Appellants is refused.

2. The Appeal is removed from the roll.

2 S V Paulus, Unreported, CA 114/98 Delivered 28 March 2000

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H C January

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M Cheda

APPEARANCES

For State: Adv. Matota

Of Prosecutor General

Both Appellants In Person

Oluno Rehabilitation Centre