CASE NO.: CA90/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

ANDREAS
ITEMBU
…................................................................................APPELLANT

versus

THE
STATE
….......................................................................................RESPONDENT

CORAM:
MULLER,
J et
NDAUENDAPO,
J

Heard
on: 24 September 2010

Delivered
on: 24 September 2010 (Ex
tempore)

APPEAL
JUDGMENT

MULLER,
J:
[1]
The appellant was convicted of Robbery with Agravating circumstances
on 02 July 2009 and sentenced to 5 years imprisonment, of which one
year was conditionally suspended.

[2]
The State submitted comprehensive heads of arguments and the
submissions therein were confirmed by Ms Moyo at the hearing of the
appeal. The Appellant appeared in person and did not submit any
heads of arguments.

[3]
The State took a point in limine to the effect that the Appellant's
Notice of Appeal was out of time and that there is no proper
application for condonation before us. The Court heard arguments on
the point in limine at the commencement of this hearing from the
Appellant after this issue was explained to him.

[4]
The factual situation in respect of the Appellant's Notice of Appeal
and application for condonation for the late filing thereof is as
follows:

1. 
   The
   Appellant was sentenced on 02 July 2009;

   
   

2. 
   In
   terms of Rule 67(1) of the Magistrate's Court Rules a Notice of
   Appeal must be filed within 14 days of the date of sentence;

   
   

3. 
   At
   the end of the Appellant's trial and after he had been sentenced on
   02 July 2009, the Magistrate duly informed the Appellant of his
   rights in respect of review and appeal. He was specifically
   informed that he has the right to appeal and if he intends to do so
   he must file a Notice of Appeal within 14 days with the Clerk of
   the Court setting forth his grounds of appeal. He was further
   informed that if the Notice of Appeal is out of time, an
   application for condonation should be filed stating the grounds why
   his appeal is out of time;

   
   

4. 
   The
   Appellant indicated that he understood the Magistrate's explanation
   and does not require any further explanation;

   
   

5. 
   The
   case was remitted to a Judge of this Court for review and the Judge
   confirmed on 03 September 2009 that the proceedings were conducted
   in accordance with justice;

   
   

6. 
   On
   10 August 2009 the Appellant addressed a letter in handwriting to
   the Clerk of the Court with the heading: "Application
   for leave to late appeal". That
   document contains several pages of what are apparently grounds or
   submissions why he was wrongly convicted; g)
   The
   record furthermore contains a handwritten document with the
   heading: "Application
   for condonation to leave for late appeal". This
   document is undated and reads as follows (undedited):

   
   

"Shortly
after my conviction and sentencing, I firstly consulted a legal
representative Mr Steyn who is stationed at Walvis Bay to fill in an
application for leave Notice of Appeal within reasonable period of
time, unfortunately, to some misunderstands about the nature of the
case, he withdrawn. That technicality has then caused a delay, since
I has to seer another legal representative to substitute Mr Steyn.
Since all the other lawyer that I consulted are demanding higher
prices for their legal services. I therefore decide to appeal on my
own".

[5]
The Notice of Appeal is undoubtedly out of time and does not comply
with the requirements of the said Rule 67(1). It is evident that the
Appellant also recognised that, because he clearly made reference to
it in his belated Notice of Appeal.

[6]
The case law in respect of an application for condonation is clear.
In S
v Kashire 1978
(4) SA 166 (SWA) Lichtenberg AJ said the following at 167 H:

"The
proper procedure for the late filing of a Notice of Appeal is by way
of an application, supported by an affidavit made by the accused
(the present applicant)..."

The
Appellant did not make any supporting affidavit. He only wrote the
letter with the contents quoted earlier herein.

[7]
In that letter the Appellant refers to consultations with a legal
representative, a certain Mr Steyn, who withdrew and with other
unnamed legal representatives. No explanation or any further details
of what these consultations entailed are provided. Furthermore, none
of these legal representatives made any affidavit providing any
explanation why the Notice of Appeal was out of time.

[8]
Condonation cannot only be granted just for the asking thereof. An
Applicant seeks the indulgence of the Court and has to be absolutely
honest with it. In the case of the S v
Abraham Ruhumba, case
no. CA 103/2003, an unreported judgment of Damaseb AJ, as he then
was, delivered on 20 February 2004, the following was said in this
regard on p5:

"It
is a notorious fact that applicantions for condonation of late
filling of appeals and leave to appeal by prisoners are not in
vogue; such that this court is inundated with applications of this
kind. A
fortiori an
applicant that comes to this court seeking condonation must provide
as sufficient information as possible to enable the court to decide
whether or not the reasons for the delay are acceptable. Such
applications must be bona
fide".

He
later said at p6:

"In
terms of Section 309(2) of Act 51 of 1977, the court of appeal is
competent to condone the applicant's failure to file a notice of
timeously, if the applicant provides an acceptable explanation and
his prospects of success on appeal are

reasonable
prospects of success on appeal only become a

consideration
if the reason for the delay is acceptable. If the reason for the
delay is unacceptable, it matters not that the prospects on appeal
are reasonable except in the rare case where there has been a
complete failure of justice, or the verdict of the lower court is so
repugnant and perverse that the court on appeal cannot, in all
conscience; allow it to stand. Such instances are bound to be rare".

[9]
It is trite that the onus rests on an applicant applying for
condonation to provide satisfactory explanation(s) to the court for
his/her default, as well as that he/she has good prospects of
success on appeal. If the applicant fails on the fist requirement,
the second does not even come into play and the applicant is out of

court.
(See S
v Nakapela and Another 1997
NR 184(HC) at 185G-H).

[10]
In this matter the Appellant's application is not in order, because
no supporting affidavit had been filed and the Appellant failed to
provide a satisfactory reason for its delay in giving Notice of
Appeal in time. The Appellant consequently falls over the first
hurdle and the so-called application for condonation has to be
refused.

[11]
In the result, the application for condonation is refused and the
appeal is struck from the roll.

MULLER,
J

I
agree

NDAUENDAPO,
J

ON
BEHALF OF THE APPELLANT: IN
PERSON

ON
BEHALF OF THE RESPONDENT: MS
MOYO

Instructed
by: OFFICE
OF THE PROSECUTOR GENERAL