NOT
REPORTABLE
CASE NO.: CA 21/2011
IN THE HIGH COURT OF NAMIBIA
In the matter between:
SIMON PETRUS GANEB
…..................................................................APPELLANT
and
THE STATE
….................................................................................RESPONDENT
CORAM: HOFF J et
SIBOLEKA, J
Heard on: 28 October 2011
Delivered on: 28 October 2011
(Ex tempore)
JUDGMENT
HOFF J: [1] Yes
the Appellant in this matter appeals against the sentence imposed in
the Magistrate’s Court on the 10th January 2006
where he received a sentence of 10 (ten) years imprisonment for stock
theft. Although he has been convicted of another or a second offence,
his appeal only lies against the imposition of the period of 10 (ten)
years imprisonment.
[2] It is common cause that
subsequent to the imposition of this sentence, the matter was sent on
special review where the review Judges confirmed the convictions as
well as the sentences. The convictions and sentences in respect of
the two co-Accused of the Appellant were set aside, due to the fact
that the relevant part of the record relating to them were missing.
[3] Mr Eixab, who appears on
behalf of the Respondent raised a point in limine that there
is no indication on the papers filed that the Appellant filed his
Notice of Appeal within the prescribed period of 14 (fourteen) days
after he had been sentenced.
[4] The Appellant insisted that
his Notice of Appeal was filed on the 16th January 2006,
well within the mentioned period of 14 (fourteen) days. The Appellant
has also provided the Court with copies of documents from the
Ministry of Justice and in particular from the Clerk of the Court of
Omaruru where his case was finalized. One of these documents appears
to be a record kept by the Clerk of the Court of appeal and review
matters send for transcription, where the proceedings have been
mechanically recorded. This document bears the date stamp of 13
January 2006. Another document attached to this document indicates
that matter involving the appellant and two others apparently had
been finalized on the 10 January 2006 and then there also appears in
the next column the date of 13 January 2006. This document also
contains information regarding other accused persons. Next to the
date of 13 January 2006 appears a star and the information further
reveals the following. Those with stars were appeals. The appellants
were awaiting for their cases to appear in the High Court. The
accused person must be given the benefit of the doubt that his notice
of appeal has indeed been filed within the prescribed period. The
appellant submitted that the prescribed sentence to be imposed would
exceed the jurisdiction of the magistrates’ court.
[5] Mr Eixab who appears on
behalf of the Respondent in this matter agrees with this submission.
[6] In the result the following
order is made:
This matter is referred back
to the Magistrate’s Court, Omaruru.
The Magistrate is ordered to
consider afresh which appropriate sentence to impose.
Should the Magistrate be of
the view that the appropriate sentence to be imposed in this matter
exceeds the jurisdiction of the Magistrate’s Court, the
Magistrate should in terms of the provisions of Section 114 of the
Criminal Procedure Act 51 of 1977 refer the matter for the purpose
of sentencing to the Regional Court.
The Regional Court in turn, if
the matter is so referred to that Court, in considering an
appropriate sentence should take into account the period that the
Appellant had served.
The Magistrate or the Regional
Magistrates may however only do so once it is clear from evidence
presented that the appellant has started to serve a period of
imprisonment in respect of the sentence imposed by the Magistrate’s
Court in this matter.
_________
HOFF J
I agree
_______________
SIBOLEKA, J
ON BEHALF OF THE APPELLANT:
In Person
Instructed by :
ON BEHALF OF THE RESPONDENT:
Adv. Eixab
Instructed by: Office of the
Prosecutor General
S v Ganeb (CA 21/2011) [2011] NAHC 332 (28 October 2011);