Van Wyk v S (HC-MD-CRI-APP-CAL-2020/00004) [2020] NAHCMD 486 (01 September 2020);

 

NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

APPEAL JUDGMENT

 

Case no: HC-MD-CRI-APP-CAL-2020/00004

In the matter between:

 

CHARLES VAN WYK                                                                                        APPELLANT

 

and

 

THE STATE                                                                                                     RESPONDENT

 

 

Neutral citation:  Van Wyk v S (HC-MD-CRI-APP-CAL-2019/00004) [2020] NAHCMD 387 (1 September 2020)

 

Coram:          CLAASEN J et UNGENGU AJ

Heard:           24 July 2020

Delivered:     1 September 2020

 

APPEAL JUDGMENT

 

1. The application for condonation is refused.
2. The matter is struck from the roll and is regarded as finalised.

 

JUDGMENT

 

CLAASEN J (UNENGU A J concurring)

 

Introduction

 

[1]        This matter emanates from the District Court of Walvis Bay where the accused appeared on a charge of theft, to wit a Huawei cellphone to the value of N$ 2 700. On 12 September 2019 he tendered a guilty plea. After being questioned in terms of s 112(1)(b) of the Criminal Procedure Act as amended (the CPA), he was convicted and  sentenced to 18 months’ imprisonment.

 

[2]        He was aggrieved by that sentence and filed an appeal against the sentence. The Notice of Appeal was signed by the appellant on 22 October 2019 and it was received by the Clerk of Court on 08 November 2019. The appeal was filed late as the sentence was imposed on 13 September 2019.[1] The Notice of Appeal was, however, accompanied by an application for condonation.

 

[3]        At the time of filing the appeal, the appellant did not have legal representation. That position has changed, as heads of arguments were filed by a legal representative on behalf of the appellant.

 

[4]        The matter is determined on the papers, as both counsel for the appellant and the respondent filed a written consent to waive oral arguments.

 

[5]        The appeal is opposed on the merits and the respondent raised a point in limine that the Notice of Appeal was filed out of time.

 

Condonation

 

[6]        The gist of the appellant’s condonation affidavit is that there was no wilful default by him and that the reasons constitute an acceptable explanation. He attributes the delay to him being an untrained person who does not know how to draft the papers. He was eventually assisted in drafting the papers by a fellow inmate. He also deposed that he and his family did not have the funds to secure the services of a legal representative to formulate a Notice of Appeal. He also expressed the opinion that reasonable prospects of success exist as there are compelling aspects to consider which will lead the court to a different conclusion.

 

[7]        The respondent does not harbour the same view as regards to condonation, as they prayed for the matter to be struck from the roll because it does not meet the requirements to enable the appeal court to grant condonation.

 

[8]        In respect of the test for condonation, the Supreme Court in S v Nakale[2] held that the late filing of an appeal may be condoned if the applicant gives a reasonable explanation for the delay and if there are reasonable prospects of success on appeal.

 

[9]        In considering the reason, the appellant stated that he did not know how to draft the papers and could not afford a legal representative to assist him. On the appellant’s own admission, this appeal was not drafted by a legally qualified person, which defeats his argument that it could not be done without that. Even if the court may lend an ear towards the plight of the appellant, he still has to overcome the next hurdle, which is whether he has prospects of success on appeal.

 

[10]      In S v Gowaseb[3] it was held that:

 

‘The appellant is not absolved from the second requirement regardless of whether a reasonable explanation was furnished or not. The prospect of success on appeal is imperative. If the prospects of success on appeal is non-existent, it matters not whether the first requirement was reasonable or not, the appeal must fail.’   In order to consider whether there are prospects of success on appeal, it is imperative to delve deeper into the substance of the matter.

 

Grounds of appeal

 

[11]      The appellant’s grounds of appeal signified that the magistrate failed to give adequate weight to his ‘compelling circumstances’, that the magistrate should have imposed a fine and that she failed to consider the sentence of similar cases.

 

[12]      The crux of the appellant’s heads of argument was that all things considered, the magistrate erred by imposing imprisonment without the option of a fine.

 

[13]      In  support of their argument for a lighter sentence, the appellant’s heads of argument referred to State v Mbahuma Tjambiru and Two others[4] wherein it was stated that the correct approach is first to decide upon the appropriate terms of imprisonment and thereafter to determine whether to suspend the sentence wholly (where permissible) or partially.

 

[14]      The appellant’s heads of argument also referred to State v Onesmus and others,[5] and that the accused persons therein were given fines that ranged between N$ 800-00 or 8 months imprisonment.

 

[15]      The respondent advanced a different position in its heads of argument. It re-iterated the factors on which the magistrate premised the sentence which, according to them, shows that a custodial sentence was warranted. Essentially their argument was and that there was no misdirection by the court a quo and thus no need to interfere with the sentence.

 

[16]      It is settled law that sentencing is primarily a matter that falls squarely in the discretion of the trial court. An appeal court can only interfere with a sentence if there was a material misdirection or where the sentence is startlingly inappropriate or where the sentence induces a sense of shock. [6]

 

[17]      The magistrate’s reasons for sentence expressed that the offense of theft was alarmingly high in the district and that in this case the complainant suffered the loss of a highly valued item, which apart from being a communication device, is also used for storage of personal data such as bank details and other information.

 

[18]      What appears to have weighed heavily against the appellant, is that it was not his first brush with the law. The appellant had 3 previous convictions against him. He was convicted of possession of a dependence producing drug on 17 June 2010 and was cautioned and discharged. Secondly, he was convicted of robbery on 30 June 2013 and was given a fine of N$ 3 000 or 12 months imprisonment. The last previous conviction was on 21 June 2017 for the offense of malicious damage to property and the sentence was a fine of N$ 10 000 or 12 months imprisonment.  The one relevant to the case at hand is that of robbery and the prosecutor’s submissions in aggravation of sentence gives the impression that the item in question was a cellphone.  In referring to the effect of the previous convictions, the court a quo cited S v Stuurman[7] and was cognisant of the principle that although a previous conviction is an aggravating factor, the sentence should still be reasonable to the offense and circumstances of the case.

 

[19]      Concerning the appellant’s contention of compelling personal circumstances, he offered the following information in mitigation of sentence:[8]

 

‘I am 27 years old, not married. I have one child who lives in Swakopmund with his mother. I am not employed but I do part time sign writing and am also studying something else. I will be able to pay a fine if the court imposes a fine on me. I am able to pay a fine of N$ 1000 should the court impose a fine on me’.

 

With respect, the few lines, do not validate his contention that he advanced compelling circumstances which should have persuaded the magistrate to eliminate imprisonment as a sentencing option.

 

[20]      Regrettably the cases cited in the appellant’s heads of argument do not really advance their arguments. If the purpose of referring to the Onesmus case was to support the notion that the appellant’s case warrants a fine, it is a misconception on their part.  The Onesmus case is a review matter which, amongst others, involved a review matter concerning theft of a cell phone. The court a quo disposed of the matter in terms of s 112(1)(a) of the CPA. The review court corrected the court a quo and emphasized the principle of law that s 112(1)(a) of the CPA is intended for minor offenses and that the offense in question did not qualify as a trivial offense.

 

[21]      The case of S v Mbahuma Tjambiru is also not on all fours with the matter at hand.  I do not interpret the citation used by the appellant in its heads of argument to mean the magistrate in this case was obliged to suspend the term of imprisonment.

 

[22]      Moreover, the magistrate’s reasons for sentence reflects that she applied the  Zinn[9] triad and concluded that the circumstances of the case called for a deterrent sentence that is tempered with mercy. I endorse the principle referred to in S v Simon[10] that the imposition of sentence was pre-eminently a matter for the discretion of the trial court, and it is that court which can better appreciate the atmosphere of the case and can better estimate the circumstances of the locality and the need for a heavy or a light sentence than an Appellate court. It is inevitable that at times, depending on the particular circumstances of each case, one of the factors may be given more weight than the others.  In this case, the magistrate cannot be faulted for the conclusion that the multiple aggravating factors outweighed that factors tendered in mitigation of sentence.  

 

Conclusion

 

[23]      Given that I find no misdirection by the magistrate in the imposition of the 18 months’ imprisonment, it follows that the appellant has no prospects of success on appeal.

 

[24]      A final comment concerns one of the grounds of appeal which criticized the magistrate for failing to evaluate the evidence in trial. Clearly this ground of appeal does not apply to this matter. This is because the case at hand was a guilty plea which absolved the court from conducting trial proceedings.

 

[25]      Therefore the order is as follows:

 

1. The application for condonation is refused.
2. The matter is struck from the roll and is regarded as finalised.

 

 

 _____________

C M CLAASEN

JUDGE

                                              

_______________

E P UNENGU 

ACTING JUDGE

 

 

APPEARANCES:

 

APPELLANT:                        M Siyomunji

 Instructed by Directorate of Legal Aid

 Windhoek

 

RESPONDENT:                    J Andreas

 Office of the Prosecutor General

 Windhoek