CASE
NO.: CC 20/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

WILLEM
PETER
…..............................................................................................1^st
APPELLANT

GERT
NUXABEB
….............................................................................................2^nd
APPELLANT

JAFET
NUXABEB
…............................................................................................3^rd
APPELLANT

JOHN
KHAMUXABEB
….....................................................................................4^th
APPELLANT

and

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

CORAM:
MULLER, J

Heard on:
24 January
2011

Delivered on:
24 January 2011 (Ex
tempore)

LEAVE TO APPEAL JUDGMENT

MULLER,
J.: [1]
I must confess when I read the documents in the file, I was in the
dark of what or who is before me. I have carefully perused the
Court's file in order to comprehend what has been done in respect of
an application for leave to appeal by any of the convicted accused
since their sentence. Although this matter has apparently been set
down by the Registrar's office on 26 June 2009 referring to "leave
to appeal in respect of Willem Peter (accused
2 in the trial) and
4 others versus the State", the
court's file does not contain any Notice of Appeal. Apart from that
letter from the Registrar's office, the only other documents (after
the trial) in the file are:

a. Several letters to the Registrar referring to the
court record which is apparently required by the Directorate of Legal
Affairs;

b. Letters to Willem Peter (accused) and Gert Nuxabeb
(accused) from the Directorate of Legal Affairs informing them that
their applications for legal aid had been received and that the court
record is required in order to make an informed decision regarding
their respective appeals;

c. An application (in handwriting)
dated August 2010, for condonation for the late filing of the notice
to appeal and supporting affidavit. This application for condonation
is made by Willem Peter (accused 2) and refers to "we/us".
The supporting
affidavit is not made and sworn to by any of the accused. It refers
to "Willem
Peter and others". The
Commissioner of Oaths also only referred to " Willem
Peter and others";
and

d. Heads of argument by Willem Peter and heads of
argument by the State.

[2] There is nothing before me
to indicate that accused 3-5 intended to appeal. I do not have any
notice of appeal with grounds of appeal or any application for
condonation for the late notice of their appeals. Although the
condonation application before me may refer to we or us IT is neither
signed by any of them, nor did they depose to any supporting
affidavit. I can consequently not attend to anything purporting to
relate to an appeal by any of accused 3, 4 and 5. Although they
appeared today in person I informed them of this and let them leave
the dock.

[3] All that
I have is the documentation by Willem Peter, the 2^nd
accused in
the trial. From him I neither have a notice of appeal nor any grounds
of appeal. What his grounds of appeal are can to some extend be
deducted from his heads of argument. He admits that his notice of
appeal was out of time and belatedly applied for condonation. The
rules of this court requires him to give notice of his appeal against
a judgment of this court within 14 days of sentence. He was convicted
on 3 December 2009 and sentenced on 8 December 2009. Consequently,
leave for appeal can only be considered if this court condones his
late notice of appeal.

[4] The supporting affidavit to
his application for condonation has not properly been deposed to. It
is not a proper affidavit. Willem Peter did not sign it. All that
appears on the end of the affidavit is the name of accused 2, namely
Willem Peter and others. As mentioned, the Commissioner of Oaths used
the same words, but did not say that Willem Peter signed the
statement and took the oath. However, I shall accept that Willem
Peter (accused2) understood and declared what is contained in that
document.

[5] It is trite that an
application for condonation is with the discretion of the court to
condone non-compliance of the Rules of Court, if satisfied with the
explanation for the delay and if there are prospects of success.

[6] It is
also trite that if the explanation for the delay is not acceptable,
the prospects of success do not even come into play. (See: Abraham
Ruhumba v The State, case
no. CA 103/2003, an unreported judgment of this court.) This is
exactly the situation here. The only two explanations proffered by
the accused, Willem Peter, for the long delay in noting an appeal
against his conviction and sentence are that he is a laymen in gaol
and that his family, who promised to assist him financially, left him
in the lurch by not providing finances for his appeal. In the first
instance he tried to explain the problems he has in goal to file
leave to appeal. He was legally represented by a legal
representative, Mr Boris Isaacks, during his trial and it can be
accepted that his rights to appeal had been properly explained to him
after the trial. He confirmed this in court. He did not say it didn't
happen. He does say that the "Magistrate"
explained
these rights to him, probably meaning his legal representative. Today
he confirmed it was explained by Mr Issacks. The attempt to hide
behind the fact that he is a layman does not hold water and this
excuse is not accepted. Secondly, the fact that he was waiting for
his family who promised to assist him in his appeal, is similarly a
lame excuse. Even if they promised to find finances for his appeal,
he was not prevented to give notice of appeal in time. He conceded
that his rights had been explained to him. Furthermore, he was
represented during the trial by Mr Isaacks, appointed by the
Directorate of Legal Affairs. It is very suspicious that he would now
make use of a private lawyer for whose services he had to find
finances. His letters indicate the contrary. I do not accept that
excuse.

[7] The application for
condonation is rejected on the ground of a lack of an acceptable
explanation for the delay. The question of prospects of success does
not have to be considered any further. However, considering the
submissions made in the heads of argument and the court's judgment's
on conviction and sentence, there are in my opinion no prospects of
success that another court may come to another conclusion.

[8] In the result, the late
notice of appeal of Willem Peter is not condoned.

MULLER, J

On
behalf of the Appellant: In Person

On
behalf of the Respondent: Mr Campher

Instructed
By: Office of the Prosecutor-General