NOT REPORTABLE

CASE NO.: CA 20/2011

IN THE HIGH COURT OF NAMIBIA

In the matter between:

SIMON NOPPIE KAMBINDU
….................................................................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] The
Court will give its Ruling on this matter. The appellant was
convicted in the Magistrate’s Court of theft of a motor vehicle
and three counts of housebreaking with intent to steal and theft. He
was sentenced to an effective period of 12 (twelve) years
imprisonment.

[2] The Magistrate in the Court
a quo informed the appellant that should he wish to appeal
against the conviction and sentence, he must file a notice of appeal,
and the grounds upon which he appealed against the conviction and the
sentence, within a period of 14 (fourteen) days with the Clerk of the
Court. The Appellant was also explained that in the event that he
should file the notice of appeal out of time, he must bring a
condonation application in which he must state the reasons why the
notice of appeal was filed out of time.

[3] From the papers filed, it
appears that the notice of his intention to appeal against his
conviction as well as the sentence was only filed on the 11^th
August 2010. This notice was filed more than 3 (three) years out of
time.

[4] Since the notice of motion
was filed out of time, it was incumbent upon the accused or the
appellant to bring a condonation application for the late filing of
such notice. In such an application which must be on affidavit, the
appellant must explain the reason or the reasons for his delay or
failure to file within the prescribed period. In the affidavit the
appellant must provide the Court, firstly, with an acceptable
explanation as mentioned and he must also deal with the prospects of
success on appeal, on the merits of the case. Where an appellant has
provided no reasonable explanation for his delay in filing the notice
of appeal out of time, the Court may for that reason alone strike the
application or the appeal from the Roll without having considered the
merits of the appeal.

[5] It appears from documents
filed that an application for condonation has been filed on the 27
October 2010. It appears from this document that the appellant has
not signed the affidavit before a Commissioner of Oaths. The document
was therefore not properly commissioned and for this reason cannot be
considered an affidavit. The second difficulty this Court has is that
it appears from this document that the reason provided for the late
filing of the notice of appeal is very vague.

[6] The appellant refers to the
fact that he had apparently been assured by his family that they
would appoint a legal representative to act on his behalf and
secondly that he had been assisted by his fellow prison inmates to
draft the notice of leave to appeal. No dates are provided when the
family had so promised to assist him with legal representation. This
explanation is in no way reasonable or acceptable to explain his
delay in filing the notice of appeal late. The document which
purports to be an affidavit in support of an application for
condonation also does not deal with the prospects of success on the
merits of the appeal.

[7] This Court has on numerous
occasions held that the Court Rules apply in respect of lay
litigants, as well as those litigants who are represented by legal
representatives. Since the appellant in this matter has failed to
provide this Court with an acceptable explanation for late filing of
his notice of appeal, the appeal is not before this Court and stands
to be struck from the roll irrespective of the success of his appeal
on the merits of the case.

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

_________

HOFF, J

I agree

______________

SIBOLEKA, J

ON BEHALF OF THE APPELLANT:
In Person

Instructed by:

ON BEHALF OF THE RESPONDENT:
Adv. Ndlovu

Instructed by: Office of the
Prosecutor General