CASE NO. CA 171/06

IN
THE HIGH COURT OF NAMIBIA

In the matter between:

CORNELIUS
NGHIWILEPO
….....................................................................APPELLANT

and

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

CORAM:
HOFF, J et
NDAUENDAPO,
J

Heard on:
13 June 2008

Delivered on:
22 March 2011 APPEAL
JUDGMENT:

NDAUENDAPO,
J:
[1]
The appellant and Jesaya Simeon were arraigned in the regional court
sitting at Otjiwarongo on charges of rape. They were convicted and
sentenced to 20 years effective imprisonment. Jesaya Simeon did not
appeal his conviction and sentence.

[2] In
respect of the appellant the allegations were that he is 'guilty of
the offence of rape in contravention of section 2(1)(b) of the
Combating of Rape Act 8 of 2000 (read with the provisions of sections
1, 2(2), 3, 4, 5, 6, 7 and 11 of the said act in that upon or during
May 2004 and at or near farm Tiermansdrif, Outjo in the Regional
Division of Namibia, 'the
accused caused a third person to commit a sexual act with the
complainant and did wrongfully, unlawfully and intentionally on
diverse occasions under coercive circumstances committed or continued
to commit a sexual act with Loide Nunibes, 11 years by using threats
to cause harm to the complainant'.

[3] The appellant pleaded not
guilty and after trial, he was convicted and sentenced to 20 years
imprisonment. He now appeals against both conviction and sentence.

[4] In this
Court (as well as in the court
a quo) the
accused appeared in person and Ms. Nyoni appeared for the State.

[5] At the
commencement of the proceedings Ms. Nyoni raised a point in
limine to
the effect that the appeal was noted way out of time. She submitted
that the appellant was convicted and sentenced on 4 August 2005. His
notice of appeal was received by the clerk of court of Otjiwarongo on
23 January 2006. That is more than 5 months after he was sentenced.
The appellant, although unrepresented, was fully informed by the
magistrate that he should file his notice of appeal within 14 days of
his sentence. He was further informed that if he fails to do that an
application for condonation, accompanied by an affidavit, setting out
the reasons why he did not file his notice within 14 days, must be
filed.

[6] In this case the appellant
filed his notice of appeal after 5 months after he was sentenced. His
explanation for the late filing of appeal is that he is 'illiterate
and was not able to note the appeal on his own and only got someone
who could assist him after expiry of the 14 days period'. Ms. Nyoni
submitted that the delay of 5 months is a clear indication that the
appellant was not interested in noting an appeal and his explanation
for the delay is unreasonable unacceptable and good cause has not
been shown. In addition she submitted that the appellant has no
prospects of success on the merits.

[7] As stated
earlier, the appellant was fully informed of his right to appeal
within 14 days form date of sentence. To merely state that he is
illiterate and that is why he could not file the notice in time is
not good enough. If he was really interested to note an appeal he
would have taken steps to note the appeal. In the court a
quo the
appellant was informed of his right to legal representation and if he
could not afford one, to apply to the Legal Aid Board. He chose to
represent himself. That is the risk he took when he chose to
represent himself and he cannot be heard to compliant that he is
illiterate and did not know how to note an appeal. The Court has a
discretion whether to condone the non-compliance with the rules. In
my opinion, proper condonation will be granted if a reasonable and
acceptable explanation is provided for the failure to comply with the
rules and where the appellant has shown that he has good prospects of
success on the merits in the appeal. These requirements must be
satisfied in turn. Thus, if the appellant fails on the first
requirement, the appellant is out of court (S
v Nakapale and another 1997 NR 84). In
this particular case no reasonable and acceptable explanation was
proferred by the applicant for the late noting of the appeal and as a
result he is out of court.

AD CONVICTION

[8] In any event there are no
prospects of success on the merits of the appeal.

[9] The complainant, who was 11
years at the time, testified that during May 2004 she was at farm
Tiermansdrif. One evening while she was asleep, the appellant removed
her blanket, picket her up and told her that she will be taken to the
house of the co-accused. Her mother protested against that, but
appellant threatened to beat her. He also threatened to beat the
complainant if she does not agree to go to the house of the
co-accused. Out of fear and against her will, she was taken to the
house of the co-accused. She was also warned not to return to the
house of the appellant and to stay with the co-accused. The appellant
also told her that she would not eat his food if she should returned
back to his house from the house of the co-accused.

[10] After she was forced to
stay at the house of the co-accused, the co-accused admitted that he
had sexual intercourse with her on diverse occasions. The appellant
does not deny that he took her to the house of the co-accused, but
seeks to excuse his conduct on the basis that the complainant's
mother is the one who wanted the complainant taken to his co-accused.
That was denied by the mother of the complainant.

[11] The evidence of the
complainant that she was taken to the house of the co-accused against
her will was also corroborated by her mother. The co-accused also
testified that the appellant brought the complainant to him with the
intention of the complainant becoming "his wife or girlfriend".
As pointed out above the appellant in his evidence does not deny that
he took the complainant to the house of his co-accused, but seeks to
excuse his conduct on the basis that the complainant's mother is the
one who wanted the complainant taken to Jesaya's residence.

[12] Having
considered the evidence presented in the court a
quo I
am of the view that the State's proved the guilt of the accused
beyond reasonable doubt and he was correctly convicted.

AD SENTENCE

[13] It is
trite that sentencing is pre-eminently for the discretion of the
trial court or judge. The court of appeal will only interfere if the
sentence imposed is unreasonable or the discretion has not been
judiciously exercised. The circumstances in which a court of appeal
will interfere with the sentence imposed are where the trial court
had misdirected itself on the facts (S
v Rabie 1975(4) SA 83 SA) or
where the sentence that is imposed is one which is manifestly
inappropriate and, induces a sense of shock (S
v
Snyders 1982(2) SA 694 (A)) or
is such that a patent disparity exists between the sentence that was
imposed and the sentence that the court of appeal would have imposed;
or where there is an overemphasis of the gravity of the particular
crime and under-emphasis of the accused's personal circumstances.

[14] On the
facts of this case and having regard to the aforementioned principles
I come to the conclusion that no grounds exist to interfere with the
sentence imposed. (See S
v
ABT 1975(3) SA 214 (A); S v Hlapezula and another 1965(4) SA 439 (A);
S v Van Wyk 1992(1) SACR 147 (NM); S v Moseko 1982(1) at 165 d-g SA
99(A) at 102.

[15] In the result, the appeal
is struck from the roll.

NDAUENDAPO, J

I concur

HOFF, J

ON
BEHALF OF THE APPELLANT: In
person

ON
BEHALF OF THE RESPONDENT: Ms. NYONI

INSTRUCTED
BY: Prosecutor-General