CASE NO.: CA 01/2010

IN THE HIGH COURT OF NAMIBIA 
HELD AT OSHAKATI
In the matter between:

and

Heard on: 07.02.2011 Delivered on: 18.02.2011

APPEAL JUDGMENT

[2] He was convicted on his plea of guilty and committed for sentence by the Regional Court in terms of s 114 (1) of the Criminal Procedure Act, 1977 (Act 51 of 1977) ('the Act'). I pause here to observe, that it would appear from the record of proceedings that the magistrate was of the opinion that the offence of which the accused had been convicted, was such that it merits punishment in excess of the jurisdiction of the Magistrate's Court (s 114 (1)(a)). In reaching that conclusion, he could only have relied on the value of the heifer mentioned in the charge; read with the provisions of s 14 (1)(a) of the Stock Theft Act, prescribing minimum sentences applicable, based on the value of the (stolen) stock. Appellant was a first offender.

"I am not married, I just left my home with no one. I have two children. The children are with my mother. I am unemployed I only take care of live stock."

Appellant was not cross-examined by the prosecutor and no further information was elicited from the appellant by the court. Appellant was not afforded the opportunity to make further submissions if he so wished. After the prosecutor's submissions, the court pronounced itself on whether there were substantial  and compelling circumstances present, justifying a lesser sentence or otherwise; and proceeded by imposing a sentence of twenty years imprisonment. No reasons were given for the sentence imposed. The appeal lies only against sentence.

[4] On 14 April 2009 the clerk of court, Opuwo, received a Notice of Appeal from the appellant, dated 7 March 2009. The notice was clearly filed out of time.

	Appellant was not afforded a fair trial as the magistrate failed to inform him of the provisions of s 114 (2) of Act 51 of 1977;
	The magistrate committed an irregularity by not having made a formal finding (of guilty) in terms of s 114 (3)(a);
	The magistrate failed to assist the unrepresented appellant;
	The magistrate erred in law and/or on the facts in failing to take the personal circumstances of the appellant into account when sentencing;
	The magistrate erred in law and/or on the facts by not suspending part of the sentence, despite having found that there are no substantial and compelling circumstances.
[6] An unstamped document dated 31 January 2011 and styled 'Additional Grounds of Appeal' forms part of the documents filed of record and contains three more grounds of appeal, namely:

■

Act;
	The magistrate erred in law and/or on the facts in not finding substantial and compelling circumstances;
	The sentence imposed is harsh under the circumstances and induces a sense of shock.

[9] Before I consider the ground of appeal set out in the notices respectively, there is one issue not raised, but which deserves some attention. Subsequent to pleading guilty, the appellant was questioned pursuant to the provisions of s 112 (1)(b) of the Act; and coming to the value of the stolen stock, the record reflects the following:

Therefore, in the present case, without the value of the stock properly determined to be N$500 and more, the magistrate had no authority to act on when committing the accused for sentence by the Regional Court in terms of s 114 (1), and by so doing, misdirected himself.

205d-i).

[17] In the result, it is ordered:
1.	The appeal against sentence is upheld.
2.	The matter is remitted to the Regional Court sitting at Opuwo with the direction to deal with the case in accordance with the guidelines set out herein.
3.	In sentencing, regard must be had to the sentence already served by the appellant.

LIEBENBERG, J

I concur.

TOMMASI, J

ON BEHALF OF THE APPELLANT 		Ms. I. Mainga 

Instructed by:						Kishi Legal Practioners

ON BEHALF OF THE RESPONDENT 		 Mr. D. Lisulo 

Instructed by:						Office of the Prosecutor-General