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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

APPEAL JUDGMENT

Case no: CA 08/2013

In the matter between:

ANNANIAS ALWEENDOAPPELLANT

and

THE STATERESPONDENT

Neutral citation: Alweendo v The State (CA 08/2013) [2014] NAHCNLD 44 (16 JULY 2014)

Coram:CHEDA, J and TOMMASI, J

Heard:20 June 2014

Delivered:20 June 2014

Reason released:16 July 2014

Flynote:Where an accused is charged and convicted for the contravention of the provisions of the Combating of Domestic Violence Act, Act no. 4 of 2003, it is a requirement that the court should proceed in terms of section 25 (1) of the said Act. Failure to do so is a misdirection which calls for the appeal court’s interference.

Summary:Accused was charged with assault with intent to do grievous bodily harm as read with the provisions of Combating of Domestic Violence Act, Act 4 of 2003. He was convicted and sentenced as follows:

On appeal we noted that the court a quo did not invoke s 25 (1) of the said Act. The conviction was confirmed but the sentence was set aside and the matter was remitted to the same court in order to invoke s 25 (1) of the said Act.

ORDER

  1. The conviction is confirmed but the sentence is set aside;
  2. The matter is remitted to the court a quoto comply with s 25 (1) of the Combating of Domestic Violence Act, (Act no. 4 of 2003).
  3. The trial magistrate is further ordered to take into consideration the period of imprisonment already served by the accused, when sentencing the accused.

JUDGMENT

CHEDA J (TOMMASI J concurring)

[1]This is an appeal against sentence only. On the 20th June 2014, we heard this appeal and made the following order;[with the reasons to follow and these are they:]

  1. The conviction is confirmed but the sentence is set aside;
  2. The matter is remitted to the court a quoto comply with s 25 (1) of the Combating of Domestic Violence Act, (Act no. 4 of 2003).
  3. The trial magistrate is further ordered to take into consideration the period of imprisonment already served by the accused, when sentencing the accused.

We undertook that the reasons would follow and these are they.

[2]Appellant a 26 year old man was charged with malicious damage to property as read with Act 4 of 2003 and assault with intent to do grievous bodily harm as read with Act 4 of 2003. He pleaded not guilty to both charges, but, was however convicted and sentenced as follows:

“Accused is sentenced to 4 years imprisonment of which 1 year is suspended for 5 years on condition that accused is not convicted of an offence of assault or an offence of malicious damage to property committed during the period of suspension.”

[3]Upon perusal of the record we found that nothing turns on the conviction but it is the sentence which is cause for concern. Before sentencing the appellant the learned trial magistrate took into account the mitigatory features of appellant, but, omitted to invoke the provisions of section 25 (1) of the combating of Domestic Violence Act (Act No. 4 of 2003) which reads thus:

“25 (1) the court must, if reasonably possible and within reasonable time, notify the complainant or the complainant’s next of kin, if the complainant is deceased of the time and place of sentencing in a case of domestic violence offence against the complainant.

(2) At the time of sentencing, the complainant’s next of kin, if the complainant is deceased or a person designated by the complainant or the complainant’s next of kin has the right to appear personally and has the right to reasonably express any views, concerning the crime, the person responsible the impact of the crime on the complainant and the need for restitution and compensation

(3) A complainant or the complainant’s next of kin, if the complainant is deceased, who is unwilling or unable to appear personally at sentencing has the right to inform the court of his or her views on an appropriate sentence by means of an affidavit.”

[4]The aim and object of the said section is to accord the complainant an opportunity to express her view on the crime committed upon her and what punishment she views as suitable in the circumstances. In casu that opportunity was not accorded to her, see S v Amunyela (CR 22/2011) [2011] NAHC 224/27/7/2011. This, therefore, stands to reason that s 25 (1) of the said act was not complied with. Failure to comply with the provision of the said act clearly points to misdirection on the part of the court a quo. A misdirection of this nature entitles an appeal court to interfere with the sentence proceedings.

[5]It is for that reason that we made the order referred to above.

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M Cheda

Judge

I agree.

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M A Tommasi

Judge

APPEARANCES

APPELLANT:AnnaniasAlweendo, In Person

RESPONDENT: D Lisulo

Of Office of the Prosecutor- General, Oshakati