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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CA 106/2014

In the matter between:

SHAMPAPI KAMENYE APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Kamenye v State (CA 106/2014) [2015] NAHCMD 20 (10 February 2015)

Coram: PARKER AJ et KAUTA AJ

Heard: 30 January 2015

Delivered: 30 January 2015

Reasons: 10 February 2015

Flynote: Criminal procedure – Appeal – Appeal against sentence – Noting of appeal out of statutory time limit – Applicant should apply to court for condonation of late noting of appeal – Appellant must give satisfactory explanation for delay – In determining the condonation application court should take into account the explanation in the supporting affidavit for the delay and prospects of success on appeal – In instant case appellant has failed to give satisfactory explanation for the delay and there are no prospects of success on appeal – Court finding that appellant has not shown that the proceedings on sentence was vitiated by an irregularity or misdirection on the part of learned magistrate – Court also found that the sentence is not so manifestly excessive that it induces a sense of shock in the mind of the court – Consequently, court concluded that upon the authorities the court was not entitled to interfere with the sentence imposed – Consequently, the court dismissed the appeal.

Summary: Criminal procedure – Appeal – Appeal against sentence – Appellant noted appeal against sentence out of time – In that event appellant should apply to court for condonation of late noting of appeal – Appellant must give satisfactory explanation for delay – In determining the condonation application court should take into account the explanation in the supporting affidavit for the delay and prospects of success on appeal – In instant case appellant has failed to give satisfactory explanation for the delay and there are no prospects of success on appeal – Court found that the explanation for the delay was not satisfactory – Court also found that the appellant has not established that the sentencing proceedings were vitiated by an irregularity or that the learned magistrate misdirected herself – Court also did not find the sentence imposed to be so manifestly excessive that it induces a shock in the mind of the court – Consequently, the appeal should fail – Court accordingly dismissed the appeal.

JUDGMENT

PARKER AJ (KAUTA AJ concurring):

[1] The appellant was charged before the Magistrates’ Court, Rundu, on one count of housebreaking with intent to steal and theft. The appellant was convicted and sentenced accordingly to three years’ imprisonment. The appellant appeals against sentence. In the instant proceeding the appellant appears in person. In his notice of appeal, the appellant also filed simultaneously an application to condone his late filing of the notice. Mr Marondedze represents the respondent.

[2] Having heard the appellant and Mr Marondedze, the court made the following order:

‘1. The appeal is hereby dismissed.

2. Reasons to follow on or before 9 February 2015.’

The following are the court’s reasons:

[3] The respondent has raised a preliminary objection to the effect that the notice of appeal was filed out of time; and in his application for condonation, the appellant has not given a satisfactory explanation for the delay in noting the appeal.

[4] The rule of practice is entrenched in the court that the appeal court is competent to condone the late noting of an appeal if the applicant gives a satisfactory explanation for the delay and he or she has reasonable prospects of success on appeal; and if the explanation is not satisfactory the court may not consider prospects of success except in the rare case where there has been a failure of justice in the proceedings in the court below or the decision of the court below is so repugnant and perverse that the appellate court should not allow it to stand. See S v Ruhumba Case No. CA 103/2003 (Unrepoted).

[5] The first reason in the appellant’s affidavit is unacceptable. The record does not indicate that the appellant informed the learned magistrate that he was not capable of noting the appeal when at the close of his trial the learned magistrate duly instructed him about the noting of appeal. Additionally, he does not say whether the notice of appeal that he filed out of time was settled by him or somebody else; and if by someone else, the identity of such person. In any case, the appellant has not indicated clearly that he has reasonable prospects of success on appeal and the basis therefor. See S v Nowaseb 2007 (2) NR 640.

[6] It must be remembered that it is trite that an appellate court may interfere with the sentence imposed by the trial court only if ‘the sentence is vitiated by an irregularity or misdirection’ or if ‘the sentence is so manifestly excessive that it induces a sense of shock in the mind of the appellate court’. (S v Simon 2007 (2) NR 500 at 518A-C) The appellant has not established that any irregularity occurred in the proceedings or that there was a misdirection on the fact or the law or both on the part of the learned magistrate. And on our part, we find that the sentence imposed does not induce a sense of shock in our minds.

[7] Based on these reasons and also taking into account our finding previously that the appellant has not given a satisfactory explanation for the delay in noting the appeal, we conclude that the appeal must fail, and it fails; whereupon the following order is made:

The appeal is dismissed.

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C Parker

Acting Judge

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P Kauta

Acting Judge

APPEARANCES:

APPELLANT In person

RESPONDENT: E E Marondedze

Of Office of the Prosecutor-General, Windhoek