Lungameni V the State (CA1-2012) 2015 NAHCNLD 9 (06 March 2015)

Lungameni V the State (CA1-2012) 2015 NAHCNLD 9 (06 March 2015)

NOT REPORTABLE

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: CA01/2012

In the matter between:

ALEKSIUS LUNGAMENIAPPLICANT/RESPONDENT

and

THE STATE APPELLANT/RESPONDENT

Neutral citation: Lungameniv The State (CA1-2012) [2015] NAHCNLD 9(06 March 2015)

Coram:TOMMASI J and JANUARY J

Delivered: 24 October 2014

Reasons Released:6 March 2015

Flynote: Appeal – Application for leave to adduce evidence – Court have the power to grant leave in terms of s19 of the High Court Act,(Act 16 of 1990) ands304(2)(b) read with s 309(3) of the Criminal Procedure Act, 1977 (Act 51 or 1977) - Power of court to be used sparingly – The applicant gave an acceptable explanation; showed that the evidence was essential for the case on hand; and that it would have the effect of influencing the result of the case – Evidence led showed that the money was not stolen or used but simply misplaced – The conviction and sentence set aside

Summary: The State appealed against the sentence imposed by the magistrate. The respondent brought an application for leave to adduce new evidence. The court granted the applicant leave to lead new evidence. The applicant was convicted of having stolen money he had received in his capacity as a police officer. He presented evidence which showed that the same money was found in a cabinet in his office. The serial numbers of the money found corresponded with the serial numbers recorded on a register which was handed into evidence during the trial in the court a quo and marked exhibit “B”. The court found that the conviction could not stand and the conviction and sentence were set aside.

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ORDER

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1.The conviction and sentence are set aside

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JUDGEMENT

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TOMMASI J (JANUARY J concurring)

[1]The State was granted leave by this court to appeal against the sentence imposed by the magistrate in the district court of Outapi sitting at Okahao. The respondent was convicted of theft of cash in the sum of N$1910 and sentenced to two years’ imprisonment wholly suspended for three years on the usual conditions.

[2]Whilst the appeal was still pending, the respondent brought aninterlocutory application for an order in the following terms:

1. setting aside the conviction and sentence imposed upon the applicant by the Magistrate M Lutibeezi on 27 February 2012 in the Magistrate’s court sitting at Okahao;

2.remitting the matter for hearing before another magistrate for the hearing of the evidence of the following witnesses:

2.1Alex Lungameni

2.2.ShikongoGerson Francisco

2.3.Festus Nammambo

2.4.Fredericka Noah Kapia

Alternatively

allowing their evidence to be led before this court;

3.Further and alternative relief.

[3]The application was not opposed by the appellant/respondent and the court granted the applicant leave to adduce further evidence of the applicant. After hearing the testimony of the applicant, Alex Lungameni, the court set aside the conviction and sentence and undertook to give reasons. What follows are the courts reasons.

[4]The application is supported by affidavits of the persons mentioned in 2.1 to 2.4 above. The applicant/respondent, Alex Lungamenistated that he was searching for equipment in the cabinets in his office and came across money inside a folded paper which he thought was received by Sgt.Kapia for making photocopies. When he however wanted to give it to her she informed him that she had no knowledge of such monies. The folded paper revealed a POL 7 number. He referred the paper and money to Constable Namambo who was responsible for exhibits. When the number was traced in the registers it turned out to be the same money which formed the subject matter of the theft he was convicted off.

[5]The respondent did not oppose the application. The respondent/appellant furthermore indicated that it will not further prosecute the appeal.

[6]The court is empowered in terms of s 19 of the High Court Act, 1990 (Act 16 of 1990) to receive further evidence, either orally or by deposition before a person appointed by the court, or to remit the case the court of first instance, or the court whose judgment is the subject of the appeal, for further hearing, with such instructions relating to the taking of further evidence or any other matter as this court may deem necessary. Similar provisions are contained in section 304(2)(b) read with section 309(3) of the Criminal Procedure Act, 1977 (Act 51 or 1977).

[7]In considering such an application this court is guided by the prerequisites for such applications set out in JCL Civils Namibia (Pty) Ltd v Steenkamp 2007 (1) NR 1 (SC) at paragraph 27, page7:

“Although, by s 19(a) of Act 15 of 1990, this court is granted wide powers to receive evidence on appeal a reading of the cases has shown that this is a power which the court would exercise sparingly and only where certain prerequisites are complied with. These are firstly that a reasonable and acceptable explanation must be given why the evidence was not tendered at the trial. Secondly the evidence must be essential for the case on hand; and thirdly it must be of such a nature that it may probably have the effect of influencing the result of the case. (See Staatspresident en 'n Ander v Lefuo 1990 (2) SA 679 (A) at 691C - 692C.)”

[8]The applicant gave an acceptable explanation why the evidence was not tendered at the trial, the evidence is essential to the case at hand in that it forms the subject matter of the theft of which the applicant was convicted of; and as such it most certainly would influence the outcome of the case. It was for these reasons that the court granted the applicant leave to lead further evidence.

[9]Theapplicant, a police officer, received the amount of N$1910 for safekeeping. The money was recorded in a POL7 register and a detailed description of the serial numbers of the money received was recorded. Extracts of the POL7 register and the detailed description were handed as exhibits in the court a quo.An inspection revealed that the cash so recorded was not at hand. The applicant could not give an account of what had happened to the money and he was convicted of theft.

[10]The applicant’s testimony before this court confirmed that he found the money he received in a cabinet in his office where it was placed instead of in the safe. The court verified that the serial numbers corresponds with the serial numbers recorded on exhibit “B” which was handedinto evidence in the court a quo. The court was satisfied that it was indeed the same money which formed the subject matter of the theft conviction.

[11]The court concluded that the evidence supports a conclusion that the money was not stolen or used but simply misplaced. In view of the new evidence adduced, the conviction of theft could not be allowed to stand.

[12]It was for this reason that the court ordered that the conviction and sentence be set aside.

------MA Tommasi

Judge

------

H C January

Judge

APPEARANCES:

APPELLANT:Mr P. Greyling

[Greyling & Associates]

RESPONDENT:Adv Matota

Officer of the Prosecutor-General,

Oshakati

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