REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
CASE No: CC 10/2010
VAN DER BYL
Neutra Citation: The
State V van der Byl (CC13/2010)  NAHCMD 19 (29 January 2013)
CORAM: NDAUENDAPO, J
HEARD ON: 18
DELIVERED ON: 29
procedure— Accused convicted of assault and raping his own
daughter—Appeal—Leave to appeal to the Supreme Court
against sentence by the state—Spent 11 months in custody before
conviction—Court finds that to constitute compelling and
substantial circumstances to deviate from mandatory sentence of 15
years—State appeals against sentence—Prospect of
Summary: Respondent was
convicted of one count of assault and one count of rape of his own
daughter. Sentenced to one year on assault and 14 years on rape.
Court ordered the one year sentence on assault to run concurrently
with the sentence on rape. Effective 14 years imprisonment. Court
deviated from mandatory sentence because it found that 11 months
spent in custody before conviction constituted compelling and
substantial circumstances. State unhappy with that:
circumstances of the accused outweighed by the seriousness of the
offence and interest of society.
Held, that there are
prospect of success. Application allowed.
In the result, the
application for leave to appeal is allowed.
NDAUENDAPO J 
Before me is an application by the state for leave to appeal in terms
of section 316 A of the Criminal Procedure Act 51 of 1977.
 On 29 Feb 2012, I
convicted the accused of one count of assault and one count of
rape—Contravening section 20 read with sections 1, 2, , 3, 5
,6 and 7 of Combating of Rape Act, Act 8 of 2000 Rape and further
read with sections 2  [a] [i] and [ii] 2 [b], 3 , 2S  abd
 and the first schedule of the Combating of Domestic violence Act,
4 of 2003.
I sentenced the accused
Count 1 1 year
Count 2 14 years
I ordered that the
sentence of one year was to run concurrently with the sentence of 14
years on the rape count.
 Disenchanted, with
the sentence the state filed the application for leave to appeal in
terms of section 316 A of the criminal Procedure Act 51 of 1977.
The grounds for the
application for leave to appeal are stated as follows:
‘1 Finding that
the fact that the Respondent spent 11 months in custody pending his
trial singularly constitutes substantial and compelling circumstances
that justified a departure from the mandatory minimum sentences
prescribed by the Combating of Rape Act, Act 8 of 2000.
2) Determining the
existence of substantial and compelling circumstances based on the
circumstances of the Respondent at the exclusion of all other factors
normally taken into account in sentencing.
3) Finding that there
were substantial and compelling circumstances that warranted a
departure from the prescribed mandatory minimum sentences when from
the Court’s own finding the circumstances of the Respondent
were far outweighed by the circumstances of the offence and the
interests of society.
4) Departing from the
Mandatory minimum sentences prescribed by the Combating of Rape Act,
8 of 2000 for flimsy reasons that do not stand scrutiny.
5) Ordering the
sentence of one year imprisonment imposed in respect of the Assault
charge to run concurrently with the sentence on the charge of rape.
6) Imposing a sentence
that is shockingly lenient when the circumstances of the Respondent
are weighed against the circumstances of the offence as well as the
interest of society’.
Ms Nyoni appeared for the
applicant and Mr Isaacs for the respondent.
 When considering an
application for leave to appeal the court must consider whether there
are reasonable prospect of success on appeal. In Sv Nowaseb (2) NR
640 of 640 F -641 Parker J, had this to say concerning application
for leave to appeal:
‘It has been
stated in a long line of cases that in an application of this kind,
the applicant must satisfy the Court that he or she has a reasonable
prospect of success on appeal (See, e.g., Rex v Nxumalo 1939 AD 580;
Rex v Ngubane and Others 1945 AD 185; Rex v Ramanka 1948 (4) SA 928
(0); Rex v Baloi 1949 (1) SA; 523 (A), Rex v Chinn Moodley 1949 (1)
SA 703 (D); Rex v Vally Mahomend 1949 (1) SA 683 (D & CLD); Rex v
Kuzwayo 1949 (3) SA 761 (A), R v Muller 1957 (1) SA 642 (A); The
state v Naidoo 1962 (2) SA 625 (A); S v Cooper and Others 1977 (3) SA
475 (T); S v Sikosana 1980 (4) SA 559 (A). The first ten sample of
cases adumbrated above were decided before the coming into operation
of the new Criminal Procedure Act, 1977 (Act 51 of 1977) (CPA), but
the test remains unchanged. (Sikosana, supra, at 562D).
Thus, an application
for leave to appeal should not be granted if it appears to the Judge
that there is no reasonable prospect of success. And it has been said
that in the exercise of his or her power, the trial Judge (or, as in
the present case, the appellate Judge) must disabuse his or her mind
of the fact the he or she has no reasonable doubt. The Judge must ask
himself or herself whether, on the grounds of appeal raised by the
applicant, there is a reasonable prospect of success on appeal, in
other words, whether there is a reasonable prospect that the court of
appeal may taken a different view (Cooper and Others, supra, at 481E;
Sikosana, supra, at 562H; Muller supra, at 645E-F). But, it must be
remembered that “the mere possibility that another Court might
come to a different conclusion is not sufficient to justify the grant
of leave to appeal.’ (S v Ceaser 1977 (2) SA 348 (A) at 350E).
leave to appeal have been dealt with extensively by this honorable
court. Time and again this honorable court has emphasized that an
application for leave to appeal under section 316 (1) of the Criminal
Procedure Act 51 of 1977 should be allowed if the court is satisfied
that the accused has a reasonable prospect on appeal. These
applications are not granted on compassionate ground, to console the
accused or simply afford them a further opportunity to ventilate
their arguments and, to obtain another judgment in a court of appeal.
S v Nangombe 1991 (1) SA CR 315 (NM) AT 352 B-C.’
And in Sikosana,
supra, at 562H-563A, Diemont, JA stated: (head note)
accused has been convicted and the judge decides to grant an
application for leave to appeal his reasons for so doing are less
likely to be found in his judgment. It is important in such a case
that he should state concisely his reasons for allowing the
application unless they otherwise appear clearly from the record.’
The principles enunciated
above are equally applicable where the state is the applicant in
terms of section 316 A of the Criminal Act, 51 of 1977.
 Counsel submitted
that rape is a very serious offence and referred this Court to
various cases, amongst others S v Chapman 1997 (2) SA CR 3 (A) at 55,
where the late chief Justice Mohamed described rape as follows:
‘Rape is a
serious offence, constituting as it does a humiliating, degrading and
brutal invasion of the privacy, the dignity and the person of the
victim. The rights to dignity, to privacy and the integrity of every
person are basic to the ethos of the constitution and to any
Counsel also referred
this court to various authorities dealing with the mandatory minimum
sentences. She referred to the case of S v Hoaseb 2006 (1) NR 317
(HC) at 317 where Maritz J (as he then was) held that:
“I agree with
the view of Stegmann J that for substantial and compelling
circumstances to be found the facts of the particular case must
present some circumstance that is exceptional in its nature, and that
so obviously exposes the injustice of the statutorily prescribed
sentence in the particular case, that it can rightly be described as
compelling the conclusion that the imposition of a lesser sentence
from that prescribed by parliament is justified.’’
 Counsel submitted
further that there are circumstances that further aggravate the
offence committed by the respondent such as;
(i) The complainant
managed to run away from the house of the respondent and the
respondent pursued her.
(ii) The complainant
sought shelter at the house of Elsie Prins and the respondent
followed her inside that house.
(iii) Elsie Prins pleaded
with the respondent to let the complainant go but that did not deter
(iv) Elsie Prins
testified that the complainant urinated on her stairs as the
respondent continued beating her.
(iv) The respondent for
his part confirmed that he followed the complainant to Elsie Prins’
house and grabbed her
(vi) The respondent
testified that as he removed the complainant from the house of Elsie
Prins’, he pulled and pushed her.
Counsel contended that
having found ‘that the personal circumstances of the applicant
were outweighed by the seriousness of the offence and the interest of
society should have not found that there were substantial and
compelling circumstances warranting a departure from the prescribed
Counsel submitted that if
is trite that our courts consider the accused time spend in custody
and that such consideration normally leads to a reduction of
sentence, especially if it was a lengthy incarceration. He further
submitted that the 11 months spent in custody, the fact that the
complainant did and not suffer any injuries because of the rape, the
age of the accused, the fact that the wife and the children lost a
bread winner and the level of education taken cumulatively constitute
compelling and substantial circumstances that justify a departure
from the mandatory sentence.
I have considered the
submissions by counsel in this matter. I fully agree with the
submission by counsel for the applicant that rape is a very serious
offence and that it is very prevalent. The accused is the biological
father of the complainant, he was trusted by the complainant and I
found that his personal circumstances were far outweighed by the
seriousness of the crime and the interest of society.
I am of the view that
Supreme Court may come to a different view as to the sentence imposed
by this court.
In the result, the
application for leave to appeal is allowed.
G N NDAUENDAPO
For Applicant Office
for the Prosecutor-General
For Respondent Of
Isaacks and Benz Incorporated