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REPUBLIC OF NAMIBIA REPORTABLE

IN THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

APPLICATION FOR LEAVE TO APPEAL

Case No: CC 9/2011

In the matter between:

THE STATE

and

JOHN MATHEUSFRANSTJAPA ACCUSED

Neutral citation: S v Tjapa (CC 09-2011) [2014] NAHCMD367 (27 November 2014)

Coram: NDAUENDAPO, J

Heard:7 August 2013

Delivered:27 November 2014

Flynote:Criminal Procedure – Application for leave to appeal filed out of time – Condonation – Explanation acceptable, but no prospect of success on appeal – State proved beyond reasonable doubt the guilt of applicant – Condonation refused – Matter struck from the roll.

Summary:The applicant was convicted of robbery with aggravating circumstances, three counts of attempted murder, negligent discharge of firearm, possession of firearm and ammunition without a licence and sentenced to effective 60 years imprisonment. He filed an application for leave to appeal out of time. Explanation that he waited for legal aid to respond to his application and he further stated that he has good prospects of success on appeal. Explanation acceptable, but no prospects of success on appeal.Guilt of applicant proven beyond reasonable doubt. Sentence is not shocking as the appellant has nine previous convictions. Condonation refused, matter struck from the roll.

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ORDER

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1.Application for condonation for the late filing of the application for leave to appeal is refused.

2.The matter is struck from the roll.

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JUDGMENT

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NDAUENDAPO J

[1] This is an application for leave to appeal. On 16 August 2013 the applicant was convicted of various crimes and sentenced as follows:

1.Count 1robbery with aggravating circumstances -30 years imprisonment.

2.Count 2attempted murder -10 years imprisonment.

3.Count 3attempted murder -10 yearsimprisonment.

4.Count 4attempted murder -10 yearsimprisonment.

5.Count 5negligent discharge or handling of a firearm 1-yearimprisonment.

6.Count 6possession of a firearm without a licence1- year imprisonment.

7.Count 7possession of ammunition without a licence 1 –yearimprisonment

It was ordered that the sentences in count 5, 6 and 7 will run concurrently with the sentence in count 1. The accused was sentenced to an effective term of 60 years imprisonment.

Dissatisfied with the conviction and sentence, the applicant launched an application for leave to appeal. The grounds are articulated as follows:

AD CONVICTION

‘1.The court erred in accepting the evidence of witnesses on identification of the applicant and by finding that the accused was positively identified when such evidence was riddled with contradictions, inconsistencies and was certainly unreliable. In this respect the court failed to deal with specific weaknesses pointed out by the applicant and which aspect from the record.

2.The court erred by finding the accused guilty of three charges of attempted murder, while there is no evidence whatsoever that the accused intended to kill anyone.

3.The court erred in finding that more than 3 shots were fired, when only two spent cartridges were found in the chamber of the revolver.

4.The court erred when regard is had to the elements of the offences by finding the accused guilty of Negligent discharge or handling of a firearm and again on attempted murder based on the same facts or evidence.

5.The court erred in convicting the accused as charged, including the charge of possession of ammunition, when there is no evidence whatsoever to the effect that the accused was found in possession of ammunition.

6.The court erred in making a finding that “money bags” were found in the pipe in the riverbed when there is no evidence of anyone finding money bags or bags with the accused person or in the pipe.

7.The court erred in relying on the evidence of an expert William Nambahu when it was clearly unreliable for the reasons that, the Serial number of the weapon he examined and that which was allegedly found at the scene differs.

8.The court failed to take into consideration the evidence of Mr Kai Lauenroth who testified that, the money that was handed back to Woerman Brock Supermarket Khomasdal was the money which was found in the shop.

9.The court erred in holding that “the evidence against the accused was conclusive, undeniable and overwhelming.”

10.The court erred in proceeding on the basis that because the accused failed to inform the police that people were throwing stones at him shows that it was not true at all and should not be accepted.

11.The court erred in by failing to deal with and recognize the fact that, the alleged person who was at the scene of the crime was wearing a short trouser, while the accused was found wearing a long trouser.

12.The court erred in finding that the accused authorisedHilundwa to hand over money which was found in the bags and on his body back to Woerman without any protestation when there is no evidence to suggest that the money which was given back to the accused came from the accused bags or the body, most especially when regard is had to the evidence of Woerman Brock Manager Kai Lauenroth on where the money came from.

13.The court erred in finding that “the witnesses testified that the money bags that he came out with from the shop were found next to him at the riverbed” when there is no witness who testified to that.

14.The court failed to consider the evidence that the applicant was photographed and shown on television after his arrest and at the commencement of his trial, giving the witnesses an opportunity to observe the applicant prior to their testimony.

15.The court failed to deal with all specific issues and arguments raised by the applicant.

16.The court erred in finding that the applicant’s alibi was “simply not true at all” without any contrary evidence.

17.The court erred in not giving sufficient regard to the evidence of the applicant.

18.The court erred in finding that the State proved that the applicant was in an unlawful possession of ammunition.

19.The court failed to properly analyse the whole body of evidence and make the required assessment in terms of the law including all its demerits and merits.

20.The court erred in finding that the State proved the applicant’s guilt on all charges beyond reasonable doubt.

AD SENTENCE

‘1.The imprisonment terms imposed by court in totality are shockingly inappropriate.

2.The court failed to appreciate that the offices were committed at the same place, time and in the same circumstances and should have taken the, attempted murder charges as one for sentencing purposes.

3.The court erred in not ordering that the whole or at least a substantial part of sentences on the charge attempted murder run concurrently with the sentence on robbery.

4.The court erred by not suspending any part of any sentence.

5.The court erred by not blending any part of its sentence with mercy.

6.The sentence imposed is so excessive that no reasonable man would have imposed it.

7.The court unjustifiably overemphasized the seriousness of the offences at the expense of mitigating circumstances.

8.The court gave insufficient regard to the fact that the applicant has been in custody since 2008.

9.The court failed to consider the applicant’s other mitigating circumstances.’

Brief facts

[2] ‘At approximately 19h00 on Saturday 11 October 2008 the Woermann & Brock grocery store in Khomasdal in the district of Windhoek was in the process of closing business for the day. A group of men sharing a common purpose, amongst whom the accused, and armed with firearms entered the store and wielded their firearms and ordered all customer and personnel who were still in the store to lay down on the floor. This group, including the accused, demanded that the store personnel hand over to them all cash money in the tills and the safe and they threatened and assaulted people including those mentioned in count 1 in the indictment. The accused fled the store with at least two bags of money and money stuffed in his clothes. In an attempt to escape from the police and other members of the public who attempted to apprehend him the accused fired numerous shots at them with the .22 revolver mentioned in count 6 hereof for which he did not have a licence, neither did he lawfully possess the numerous live bullets which he fired in his attempt to escape. The accused failed to escape and he was arrested in a nearby storm water pipe.’

The accused is represented by MrNtinda and the state by Mr Khumalo.

APPLICATION FOR CONDONATION

[3]The applicant was sentenced on 16 August 2013 and his application for leave to appeal was only filed on 9 September 2014. That is way out of time. He filed an application for condonation accompanied by an affidavit in which he explained the reasons for the delay. His explanation is in essence that legal aid delayed its reply to his application for legal aid and by the time legal aid was granted the period within which to file his application for leave to appeal had lapsed. He further states that he has good prospects of success on appeal as set out in his grounds of appeal. Although the explanation for the delay may be reasonable and acceptable, there are clearly no prospect of success on appeal.

[4]When considering an application for leave to appeal the court must consider whether there are reasonable prospects of success on appeal. In S v Nowaseb (2) NR 640 of 640 F -641 Parker J, had this to say concerning application for leave to appeal:

‘It has been stated in a long line of cases that in an application of this kind, the applicant must satisfy the Court that he or she has a reasonable prospects of success on appeal (See, e.g., Rex v Nxumalo 1939 AD 580; Rex v Ngubane and Others 1945 AD 185; Rex v Ramanka 1948 (4) SA 928 (0); Rex v Baloi 1949 (1) SA; 523 (A), Rex v Chinn Moodley 1949 (1) SA 703 (D); Rex v VallyMahomend 1949 (1) SA 683 (D & CLD); Rex v Kuzwayo 1949 (3) SA 761 (A), R v Muller 1957 (1) SA 642 (A); The state v Naidoo 1962 (2) SA 625 (A); S v Cooper and Others 1977 (3) SA 475 (T); S v Sikosana 1980 (4) SA 559 (A). The first ten sample of cases adumbrated above were decided before the coming into operation of the new Criminal Procedure Act, 1977 (Act 51 of 1977) (CPA), but the test remains unchanged. (Sikosana, supra, at 562D).

Thus, an application for leave to appeal should not be granted if it appears to the Judge that there is no reasonable prospects of success. And it has been said that in the exercise of his or her power, the trial Judge (or, as in the present case, the appellate Judge) must disabuse his or her mind of the fact that he or she has no reasonable doubt. The Judge must ask himself or herself whether, on the grounds of appeal raised by the applicant, there is a reasonable prospect of success on appeal, in other words, whether there is a reasonable prospect that the court of appeal may take a different view (Cooper and Others, supra, at 481E; Sikosana, supra, at 562H; Muller supra, at 645E-F). But, it must be remembered that “the mere possibility that another Court might come to a different conclusion is not sufficient to justify the grant of leave to appeal.’ (S v Ceaser 1977 (2) SA 348 (A) at 350E).

‘Application for leave to appeal have been dealt with extensively by this honorable court. Time and again this honorable court has emphasized that an application for leave to appeal under section 316 (1) of the Criminal Procedure Act 51 of 1977 should be allowed if the court is satisfied that the accused has a reasonable prospect on appeal. These applications are not granted on compassionate ground, to console the accused or simply afford them a further opportunity to ventilate their arguments and, to obtain another judgment in a court of appeal. S v Nangombe 1991 (1) SA CR 315 (NM) AT 352 B-C.’

And in Sikosana, supra, at 562H-563A, Diemont, JA stated: (head note)

‘Where an accused has been convicted and the judge decides to grant an application for leave to appeal his reasons for so doing are less likely to be found in his judgment. It is important in such a case that he should state concisely his reasons for allowing the application unless they otherwise appear clearly from the record.’

[5]Counsel for the applicant submitted that, firstly; the applicant was not properly identified, secondly, there was no evidence to support the charges of attempted murder and thirdly, the court failed to deal with the evidence of the money bags.

The accused was positively identified by the witnesses as the one who entered the supermarket on the date of the robbery wielding a firearm, ordered people in the supermarket to lie down, pointed the firearm at some of the staff members, like Cloete, assaulted them, ordered them to remove money from the safe and tills and placed them in money bags and walked out of the supermarket carrying the money bags and the firearm in his hands. The court is mindful that evidence of identification must be treated with caution as was rightly pointed by Maritz J (as he was then )

“In S v NANGO 2006 (1) NR 141 (HC), when he stated that: ‘evidence of identification should always be regarded with caution. The court must take into account the age of the witness, whether there was anything which could have an impact on visibility and the fact that a long time lapse affects the accuracy of people’s recollection. The court will also consider other evidence to determine whether the evidence of identification is corroborated by other evidence.”

[6]In this case there was sufficient illumination in the supermarket as the lights were on, some of the witnesses had a very close encounter with the accused as he pointed out the firearm at them, like Cloete who testified that the accused’s face is embedded in her memory till today, and that he was wearing a yellow trouser which was identified by the witnesses. The accused admitted wearing the yellow trouser. Outside the supermarket it was still light, he was seen carrying money bags and a revolver in his hands and he was pointed out by members of the public to the police who pursued him until he ended up in the riverbed and in the storm water drain pipe. The revolver was found in the pipe and the money bags in the riverbed close to where he was. In my view the evidence sustains the charge of robbery with aggravating circumstances.

[7] The evidence by Kakonda, Mukohongo and Katjiuanjo was that when they pursued the accused, they told him to stop, but instead he turned around and aimed the firearm at them and shot at them. More than three shots were fired at them and they were 25 meters from the accused when he fired at them. Given the circumstances under which the shots were fired at them, I am satisfied that the state proved beyond reasonable doubt that the accused attempted to kill them.

[8]Counsel further argued that witness NdapeuaHamutengela testified that she packed money in the FNB money bag and that was the bag in which the suspect went out with from the shop. However when the accused was arrested, photographs were taken of him with money bags of Bank Windhoek and Nedbank as the bags that were found with the accused person.

By the time the witness testified, many years had gone by and it maybe the witness had forgotten about the exact bag in which she packed the money and it must also be remembered that she packed the money in a hurry while being threatened with a firearm by the applicant. The evidence was that the appellant was seen carrying money bags as he exited the shop and those money bags were found next to him in the riverbed. There is no substance in that argument.

[9]As far as the sentence is concerned, the appellant has a total of nine previous convictions for housebreaking, possession of housebreaking implements, three convictions of robbery with aggravating circumstances. After spending 21 years behind bars, he committed the crimes for which this court convicted him within a year after his release. The appellant is clearly not a candidate for rehabilitation and society demands that he be in prison for the remainder of his natural life. He attempted to kill three police officers, therefore ten years for each attempted murder is justified. The sentence of 60 years does not induce a sense of shock at all and is justified in the circumstances of this case.

I have come to the conclusion that there are no prospects of success on appeal.

Order

1.Application for condonation for the late filing of the application for leave to appeal is refused.

2.The matter is struck from the roll.

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G N NDAUENDAPO

JUDGE

APPEARANCES

THE STATE:MRKUMALO

Of Office of Prosecutor General

ACCUSED:MrNTINDA

Instructed by Legal Aid