Haneb and Another v S (HC-MD-CRIMINALI-APP-CAL 9 of 2017) [2018] NAHCMD 125 (11 May 2018)

Case Title:

JOHANNES HANEB ^{1sr APPELLANT}

RICHARD USES ^{2ND APPELLANT}

versus THE STATE

Case No.: HC-MD-CRI-APP-CAL-2017/00009

Neutral citation: Haneb v S (HC-MD- CRI-APP-CAL-2017/00009) (2018] NAHCMD

125 (11 May 2018)

Division of Court:

High Court Main Division

Tried before: SHIVUTE J et SIBOLEKA J

Date of Hearing: 11 May 2018

Date of Ruling: 11 May 2018

Result on merits (attach order):

THE ORDER:

1. The application for condonation for the late filing of the notice of appeal is granted in respect of both appellants.

2. The appeal against sentence in respect of each appellant succeeds.

3. The sentence of 20 years imposed by the Regional Court is set aside and this court is at liberty to sentence each appellant afresh.

4. Each appellant is sentenced to 8 years imprisonment back dated to 12 March 2010.

5. Each appellant had already served 8 years and each should be released forthwith.

REASONS FOR DECISION (TO BE COMPLETED BY THE JUDGE):

1. Application for condonation is granted in respect of each appellant. Each appellant had prospects of success on prosecuting the appeal against sentence.

2. Each appellant was sentenced to 20 years imprisonment being the mandatory

sentence at the time of sentencing. However, the mandatory sentence was ruled unconstitutional in Daniel v Attorney General and Others 2011 (1) NR 330 (HC) AT 355-356.

(c) Although the stock that was stolen is worth N$ 1000, the appellants had already served 8 years of their sentence and this is the reason this court sentenced them afresh to 8 years, back dated to 12 March 2010. In any normal circumstancesthis court would not have sentenced any accused person to 8 years for stock theft worth N$1000.

Judge's signature:

Note to the parties:

N.N. Shivute: _U/Jl1L

I Concur: _'-I

A.M.Siboleka: _{(?; ./ (_ll5}

^/ Counsel:

Mr Kamwi (For the first applellant)

Mr Brockerhoff (For the second appellan)t

Ms Esterhuizen(For the respondent)