Court name
High Court
Case number
CA 45 of 2010
Title

S v Lameka (CA 45 of 2010) [2011] NAHC 10 (28 January 2011);

Media neutral citation
[2011] NAHC 10




















CASE NO.:
CA 45/2010








IN
THE HIGH COURT OF NAMIBIA





In
the matter between:





THE
STATE
…......................................................................................................................
APPLICANT





AND





HAMUTENYA
LAMEKA
…............................................................................................
RESPONDENT





CORAM:
SHIVUTE, J





Heard
on: 28 January 2011





Delivered
on: 28 January 2011


















RULLING:
APPLICATION FOR CONDONATION FOR THE LATE FILING OF



LEAVE
TO APPEAL.











SHIVUTE,
J:
[1]
This is an application for condonation for the late filing of leave
to appeal by the state in terms of section 310 (1) read with section
310 (2) of the Criminal Procedure Act, 1977, Act 51 of 1977 which
was heard in chambers.



[2]
The Respondent was charged with attempted murder read with the
provisions of the Combating of Domestic Violence Act, 2003, Act 4 of
2003 and convicted as charged in the Magistrate's Court Otjiwarongo
on 13 January 2009. He was sentenced to 5 years imprisonment of
which 2 years are suspended for 5 years on condition that the
accused is not convicted of assault with intent to do grievous
bodily harm or attempted murder committed during the period of
suspension.



[3]
The matter was sent for review. The reviewing Judge confirmed that
the conviction was in order. However, he declined to confirm that
the sentence was in accordance with justice as he was of the opinion
that the sentence was too lenient and that the matter should have
been referred to the Regional Court for sentencing.



[4]
The State lodged its notice of application for leave to appeal
against sentence together with an application for condonation for
the late filing of the notice of application for leave to appeal on
4 February 2010.



[5]
In its application for leave to appeal the State has set out several
grounds of appeal. It is not necessary to restate them, but the main
grounds in their totality are basically to the following effect:







"The
learned magistrate misdirected herself,... by not stopping the
proceedings and in terms of section 114 (1) (a) of Act 51 of 1977
committing the accused for sentence by a Regional Court having
jurisdiction as the offence is of such a nature that it merits
punishment in excess of the jurisdiction of the magistrate's court;
by not properly considering the magnitude of the Respondent's attack
on the complainant and that the Respondent inflicted twelve stab
wounds on the complainant; by imposing a sentence which is so
lenient that it induces a sense of shock and which is grossly
inadequate in the circumstances as it does not serve a deterrent
purpose at all but put a stamp of triviality on the crime committed
and by not properly considering that domestic violence should be
regarded as an aggravating factor when it comes to imposing
punishment in this case." (sic)



[6]
The Prosecutor-General in her supporting affidavit stated the
reasons for delay
inter
alia
as
follows:







"Although
the prosecution was represented at the trial by a public prosecutor
such prosecutor did not bring the sentence to my attention. This
matter only came to my attention during August 2009 when the
honourable reviewing Judge refused to confirm that the sentence is
in accordance with justice...



Although I
initially, at first glance, held the view that the sentence is an
appropriate sentence I am now of the opinion after properly studying
the record of the proceedings that the sentence is too lenient and
that the learned Magistrate erred by not stopping the proceedings
and referring the matter to a Regional Court for sentencing...



I am of the
opinion that the State has reasonable prospects of success on appeal
against the sentence imposed."







[7]
Section 310 (2) (a) reads as follows:



"A written
notice of an application referred to in subsection (1) shall be
lodged with the registrar of the High Court by the
Prosecutor-General or other prosecutor, within 30 days of the
decision, sentence, or order of the lower court, as the case may be,
or within such extended period as may on application on good cause
be allowed."



[8]
It is apparent from the record that the application was served on
the Respondent and the Respondent wrote a letter that he applied for
legal aid to be represented during the hearing. He did not submit
written submissions in terms of section 310 (4) of the Criminal
Procedure Act. He also came to court in person. I told him to go
back as proceedings of this nature are heard in Chambers and that
there was no need for a full-scale hearing. It is not necessary for
any appearance by either a representative of the state or the
accused.







See
S v Mujiwa
2007
(1) NR 39



[9]
When an Applicant is applying for condonation for the late filing of
the notice of application for leave to appeal he/she should show
good cause why there was non-compliance with the law within which
the notice of appeal has to be filed.



[10]
In the application before me, the applicant as previously noted,
stated in her supporting affidavit that one of the reasons for her
not to file the application on time was because, although the
prosecution was represented at the trial by a public prosecutor,
such prosecutor did not bring the sentence to her attention. This
matter only came to her attention during August 2009 when the
reviewing Judge refused to confirm that the sentence was in
accordance with justice. She went on to say that although at first
glance she held the view that the sentence was an appropriate one,
having properly studied the record of proceedings, she was now of
the opinion that the sentence imposed was too lenient and that the
learned magistrate should have referred the matter to the Regional
Court for purpose of sentencing.



[11]
It is common cause that Applicant should have appealed against the
sentence within the period of 30 days. She failed to do so, and this
has rendered the application to be out of time.



[12]
Despite the fact that the matter came to the attention of the
Prosecutor-General during August 2009, she only lodged her
application for leave to appeal on 4 February 2010, about 6 months
after it came to her attention. She did not explain what happened
between August 2009 and 4 February 2010 which might have caused the
delay.



[13]
It is therefore my conclusion that the State has failed to show good
cause why it failed to lodge its application for leave to appeal on
time. Because of the conclusion I have arrived at, I found it
unnecessary to consider the merits.







[14]
In the result the following order is made:







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


































SHIVUTE, J