NO: CA 40/2011
THE HIGH COURT OF NAMIBIA
the matter between:
HOFF, J et SIBOLEKA, J
on: 13 April 2012
on: 13 April 2012 (Ex tempore)
on: 30 May 2012
HOFF, J:  This Court,
after hearing argument on behalf of the respective parties gave the
following orders on 13 April 2012:
1. The appeal against the
sentence imposed by the Regional Court Magistrate succeeds.
2. The sentence is set
aside and substituted with one of 15 years imprisonment.
3. The sentence is
antedated to 10 November 2008.
These are the reasons.
 The appellant (a 29 years old
Namibian male person), who pleaded guilty on a charge of stock theft
in contravention of the provisions of section 11(1)(a) of the Stock
Theft Act, (Act 12 of 1990) (the Act) in the Regional Court, was
subsequent to questioning in terms of section 112(1)(b) of Act 51 of
1977, convicted and sentenced to 30 years imprisonment. The appellant
admitted stealing one ox valued at N$4 000.00. The appellant also
admitted two previous convictions for stock theft committed during
2002 (six head of cattle) and during the year 2007. It is not clear
what stock the appellant stole during 2007, but he was sentenced in
the Regional Court to 20 years imprisonment of which 17 years
imprisonment were suspended for a period of 5 years on certain
 The Regional Court magistrate, in
the absence of any compelling and substantial circumstances, had
little discretion and was obliged in terms of the provisions of
section 14(1)(b) of Act 12 of 1990 impose a mandatory 30 years direct
term of imprisonment as the appellant was a repeat offender and over
the age of 18 years when the crime was committed.
 The appellant was sentenced in the
Regional Court on 10 November 2008 and filed his notice of appeal
against sentence on 9 September 2011.
 The appellant in his application
for condonation of the late filing of his notice of appeal stated
that he drafted his notice of appeal with the assistance of fellow
inmates well within the 14 days period prescribed by the Rules and
gave the notice of appeal to the “postman” whom he had
trusted to deliver to the prison authorities. During 2009 he directed
a letter to the Registrar of this Court enquiring about his appeal
and was informed that such notice of appeal was not received by the
Registrar. He further stated that he has good prospects of success on
appeal on the merits as section 14(1)(b) of the Act in terms of which
he was sentenced has been declared unconstitutional, and that a
sentence of 30 years imprisonment is startlingly inappropriate,
induces a sense of shock, and that there is a striking disparity
between the sentence imposed by the trial court and that which in all
likelihood will be imposed by the Court of Appeal.
 Although the explanation for the
late filing of his notice of appeal is not a reasonable explanation,
Mr Moyo, counsel appearing on behalf of the State, conceded in view
of recent decisions that the appellant has an “arguable case”.
(See Daniel v Attorney-General and Others; Peter v
Attorney-General and Others 2011 (1) NR 330 (HC) and State v
Ismael Huseb, Case Number CR 95/2011, unreported judgment
delivered on 21 October 2011).
 This Court in view of the fact
that there are reasonable prospects of success on appeal, condones
the late filing of the notice of appeal.
 The approach of a Court of Appeal
regarding a sentence imposed in a lower court is that sentencing is
pre-eminently a matter within the discretion of the trial court and
that a Court of Appeal will only interfere where the court imposing
sentence, misdirected itself materially in respect of the sentence
imposed or committed an irregularity. A Court of Appeal will also
interfere where the sentence imposed is startlingly or disturbingly
inappropriate, or where it induces a sense of shock, or where there
is a striking disparity between the sentence imposed by the trial
court and the sentence the Court of Appeal would have imposed as
court of the first instance. (See S v Tjiho 1991 NR 361 (HC)
at 361A – B; Director of Public Prosecutions v Mngoma
2010 (1) SACR 427 (SCA).
 This Court in Daniel (supra)
struck the words “for a period of not less than 30 years”
from the wording of section 14(1)(b) of the Act and held that the
prescribed minimum sentence was inconsistent with the Constitution of
Namibia consequently the prescribed minimum sentences no longer apply
and are incompetent sentences.
 Where the law has changed
regarding a sentence to be imposed between the time of the imposition
of the sentence by the trial court and the hearing of the appellant’s
appeal in the Court of Appeal, the Court of Appeal will regard the
appellant to be in the same position as one that has not been
sentenced at all. (See S v Mpendokana 1987 (3) SA 20 (CPA) at
23C – D approved in Prokureur-General, Noord-Kaap v Hart
1990 (1) SA 49 (A) at 57 A).
 Mr Jones who appeared on behalf
of the appellant in this appeal (amicus curiae) submitted that
the appellant’s motive for the theft was not commercial gain
but due to the needs of the family. Mr Jones with reference to a
number of South African dicta submitted that an appropriate
sentence in the circumstances would be one of 3 years and six months
 This Court will consider sentence
having regard to the usual sentencing principles and to the aims of
 In the matter of the State
versus Petrus Lwishi unreported judgment Case No. CA 9/2009
delivered on 18 November 2011 Liebenberg J appropriately stated the
fact that the mandatory minimum stated (in casu thirty years
imprisonment) has been struck down does not imply that the offence of
stock theft has become a less serious offence. It remains a serious
offence and deterrence as one the aims of punishment should be
emphasised in order to give effect to the intention of the
Legislature to address the problem of stock theft in Namibia.
 The appellant slaughtered an ox
and the fact the meat was recovered before the appellant could
dispose thereof does not mean that the complainant suffered no
financial loss. The appellant previously had the benefit of a
suspended sentence but this appears to have no meaningful impact on
the behaviour of the appellant. What remains morally reprehensible is
the fact that appellant after he had been convicted of stock theft on
17 July 2007 (for the second time) but before he was sentenced (on 23
November 2007) stole this one ox during November 2007.
 I am mindful of the fact that the
State may in future apply to have the suspended sentence put into
operation nevertheless I am in agreement with the submission of Mr
Moyo who appeared on behalf of the respondent that an appropriate
sentence in the circumstances would be a custodial sentence of not
less than fifteen years.
ON BEHALF OF THE APPELLANT: MR J P
Instructed by: AMICUS CURIAE
ON BEHALF OF THE RESPONDENT: ADV. E
by: OFFICE OF THE PROSECUTOR GENERAL