Court name
High Court
Case number
CA 57 of 2010
Title

S v Feregano (CA 57 of 2010) [2011] NAHC 309 (14 October 2011);

Media neutral citation
[2011] NAHC 309
Coram
Hoff J













CASE NO: CA 57/2010



NOT REPORTABLE











IN THE HIGH COURT OF NAMIBIA











In the matter between:















DANIEL FEREGANO
…........................................................................APPELLANT











and











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















CORAM: HOFF J











Heard on: 14 October 2011











Delivered on: 14 October 2011
(Ex tempore)















JUDGMENT












HOFF J: [1] The
appellant was arraigned in the Regional Court and convicted on one
count of rape and sentenced to 10 (ten) years imprisonment of which 4
(four) years were suspended for 5 (five) years on certain conditions.



[2] The appellant filed a
Notice of Appeal 5 (five) months late. Having failed to file the
Notice of Appeal within the prescribed time it was incumbent upon the
appellant to approach this Court and apply for Condonation of the
late filing of his Notice of Appeal.



[3] On the 11 April 2011 this
Court heard the condonation application. This Court refused to
condone the late filing of the Notice of Appeal. Firstly, on the
basis that the appellant did not provide the Court with an acceptable
explanation for his delay in filing the Notice of Appeal late. In
fact it appears that the appellant tried to mislead this Court in
this regard. Secondly, this Court was of the view that there were no
prospects of success on appeal on the merits of the case.



[4] The application for
condonation was rejected and the appeal was struck from the role.



[5] Subsequently the applicant
again filed certain papers and it appears that he is now applying to
this Court to have the appeal re-instated. Mrs Nyoni who appears on
behalf of the respondent, the State, submitted that this Court at
this stage may not again hear the appeal because the Court is functus
officio.
This means that this Court has already pronounced itself
at a previous occasion on the same issue and cannot now reconsider it
for a second time. Mrs Nyoni has referred the Court to certain case
law as authority for her submission that this Court has become
functus officio. I agree with her submission as well as the
authorities referred to in support of that submission.



[6] In the matter of West
Rand Estates Limited versus New Zealand Insurance Company Ltd
1926
AD 173. The Court expressed itself as follows and I quote, “The
general principal now well established in our law is that once a
Court has duly pronounced a final judgment or order it has itself no
authority to correct, alter or supplement it. The reason is that it
thereupon becomes functus officio: its jurisdiction in a case
having been fully and finally exercised, its authority over the
subject matter as seised”.



[7] This Court for the reasons
mentioned therefore cannot entertain this second appeal. If the
appellant is not satisfied with the ruling of this Court given on the
11 April 2011 then its only recourse is to appeal to the Supreme
Court of Namibia.



[8] This matter is accordingly
struck from the roll.























_________



HOFF J















I agree























________________



SIBOLEKA, J











COUNSEL ON BEHALF OF THE
APPELLANT: IN PERSON











Instructed by :















COUNSEL ON BEHALF OF THE
RESPONDENT: ADV. NYONI











Instructed by: OFFICE OF THE
PROSECUTOR-GENERAL