Mushandikwe v S (HC-MD-CRI-APP-CAL-2023/00063) [2025] NAHCMD 43 (14 February 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

APPEAL JUDGMENT

CASE NO: HC-MD-CRI-APP-CAL-2023/00063

In the matter between:

HASTINGS MASHIALETI MUSHANDIKWE APPELLANT

and

THE STATE RESPONDENT

Neutral Citation: Mushandikwe v S (HC-MD-CRI-APP-CAL-2023/00063) [2025] NAHCMD 43 (14 February 2025)

Coram: CLAASEN J and CHRISTIAAN J

Heard: 24 January 2025

Delivered: 14 February 2025

Flynote: Criminal Procedure – Condonation – Late filing of notice of appeal – Appellant convicted on 13 July 2022 and appeal out of time with almost 2 years –explanations – Court found explanation not reasonable and acceptable – No prospects of success – Condonation dismissed.

Summary: The appellant was employed by the Roads Authority as a vehicle examiner, responsible for conducting roadworthiness tests at the NATIS offices. He was duly authorized and trained to assess vehicles' compliance with required standards and issue roadworthiness certificates upon successful testing. The matter at hand pertains to the appellant’s failure to perform the requisite roadworthiness examinations on two vehicles. Yet, he issued roadworthiness certificates for them, thereby misusing his official position within a public body to unlawfully obtain personal benefits. The appellant was charged and convicted on the main count of contravening s 43(1) of the Anti-Corruption Act 8 of 2003 (“the Act”). He was subsequently sentenced to a fine of thirty thousand Namibian dollars (N$30 000) or three (3) years imprisonment plus another 2 years imprisonment that is suspended for five (5) years on condition that accused is not convicted of contravening the Act – corruptly using office or position to obtain gratification for himself or another person – committed during the period of suspension. The appellant is now appealing against the conviction.

The appeal was filed about two years late. The appellant explained that the delay was due to financial constraints and partly because he had to wait for the legal insurer to appoint a legal practitioner to assist him with noting the appeal. The explanation was found not to be acceptable and reasonable. In addition, there are no prospects of success on appeal. The application for condonation is dismissed.

Held: The explanation of lack of funds for not filing the notice of appeal on time is not acceptable or reasonable.

Held further: The appellant failed to show that he has prospects of success on appeal.

ORDER

1. The point in limine is upheld.

2. The application for condonation for the late filing of the appellant's notice of appeal is refused.

3. The appeal is struck from the roll and regarded as finalised.

APPEAL JUDGMENT

CHRISTIAAN J (CLAASEN J concurring):

[1] On 13 July 2022, the appellant was convicted of the main count of contravening s 43(1) of the Anti-Corruption Act 8 of 2003 (“the Act”), corruptly using office or position for gratification, and acquitted on count 2 with its alternative counts corruptly using office or position for gratification and fraud. He was subsequently sentenced to a fine of thirty thousand Namibian dollars (N$30 000) or three (3) years imprisonment plus another two (2) years imprisonment that is suspended for five (5) years on condition that accused is not convicted of contravening the Anti-Corruption Act, Act 8 of 2003 – corruptly using office or position to obtain gratification for himself or another person – committed during the period of suspension.

[2] The appellant is now appealing against the conviction.

[3] Ms Haufiku represents the appellant, while Mr Iitula appears for the respondent.

Grounds of appeal

[4] The grounds of appeal are stated as follows:

‘AD CONVICTION

1. The Learned Magistrate erred in fact and or in law in finding that the Respondent had proved the appellants gull on count 1 beyond reasonable doubt.

2. The Learned Magistrate erred in fact and or in law in finding that appellant was guilty of the offence of Corruption on Count 1.

3. The Learned Magistrate erred in fact and or in law in finding that the Respondent had beyond reasonable doubt, proved all the elements of the alleged offence in respect of Count 1.

4. The Learned Magistrate erred in fact and or in law in placing reliance on the hearsay evidence of the investigating officer that the appellant and state witness Immanuel Kheibeb and the appellant were allegedly best friends.

5. The Learned Magistrate erred in fact and or in law in finding that the appellant and the state witness Immanuel Kheibeb were friends.

6. The Learned Magistrate erred in fact and or in law in not giving due weight to the evidence of the state witness Immanuel Kheibeb.

7. The Learned Magistrate erred in fact and or in law in holding that the appellant's version was not reasonably possibly true and in rejecting same as false.’

[5] The appellant filed a notice of appeal with the Swakopmund court clerk on 3 August 2022. On 8 August 2022, the appellant filed an application for condonation requesting the court to condone the late filing of the notice of appeal. It is important to note that the application for condonation is in respect of the one day late filing and does not cover the entire period, after the reinstatement of the appeal on 21 August 2024. It is clear that almost two years and one month have passed since the date of sentencing and the date of the reinstated appeal.

[6] It is trite law that when a notice of appeal is delayed, the appellant must file an application for condonation satisfying two requirements, namely;

a) a reasonable and acceptable explanation for the failure to note the appeal timeously and;

b) showing reasonable prospects of success on appeal.¹

[7] Consequently, the appellant filed an application for condonation with a supporting affidavit giving reasons for the delay and stating that she has prospects of success on appeal.

[8] The record of appeal, which was filed on e-justice, was incomplete and was removed from the roll on 15 November 2023, with a direction that it can be reinstated once a full record is compiled. The appellant applied for reinstatement of the appeal, which was uncontested, and the appeal was reinstated on 21 August 2024. The appeal was set down for hearing in this court on 24 January 2025, on which date the respondent raised a point in limine dealing with the late filing of the notice of appeal. This brings us to a discussion of the point in limine raised by the respondent.

Points in limine- late filing of the notice of appeal

[9] Counsel for the respondent Mr Iitula raised a point in limine. He submitted that the appellant failed to show that he has a reasonable and acceptable explanation for the delay and that he enjoyed reasonable prospects of success on appeal. He submitted that on those grounds the appeal should be struck.

[10] In response to the points in limine and in addition to what was contained in the appellant’s affidavit for the application for condonation, the appellant indicated that his explanation is reasonable and acceptable and that there are prospects of success on appeal.

[11] The record of proceedings before this court reveals that the appellant filed an application for condonation through his legal practitioner, explaining the delay for the late filing of the notice of appeal dated 8 August 2022.

[12] In considering the appellant’s application for condonation and the points in limine raised by the respondent, we remind ourselves that an application for condonation should satisfy two requirements before it can succeed. These entail firstly establishing a reasonable and acceptable explanation for the delay, and secondly, satisfying the court that there are reasonable prospects of success on appeal.² I will therefore, deal with the explanation for the delay.

The explanation for the delay

[13] Regarding the first leg, the explanation is that the appellant after his conviction and sentence on 13 July 2022, always had the intention to appeal against the conviction on count 1. He further explained that he informed his legal representative of his intention to appeal and she informed him of the cost implication or requested that he wait for feedback from the legal insurance company on whether or not they would instruct a legal practitioner to assist with the noting of the appeal. He further submitted that he was unable to pay the attorneys costs personally due to financial constraints, occasioned by the payment of a fine of N$30 000. He further explained that he was unable to note the appeal on his own, as he does not have the knowledge of the factual and legal requirements to note an appeal. He then decided to wait for the legal insurer to give feedback and received the instruction on 1 August 2022. He thereafter, prepared the first notice of appeal, and submitted that to the clerk of the court on 2 August 2022, and realised that there was no power of attorney, authorising the legal practitioner to file the appeal on his behalf. They have managed to complete the power of attorney by 3 August 2022 and re submitted the appeal to the clerk of the court, and this notice was out of time with one day.

[14] In considering the explanation as elucidated by the appellant, two main reasons emerge. Firstly, the appellant could not instruct a legal practitioner because he had financial difficulties. Secondly, that he was dependant on his legal insurance to appoint a legal practitioner to file the appeal. The affidavit lacks certain other details. The affidavit is silent as to what prevented the appellant from applying to the Directorate of Legal Aid for a legal representative to assist him in pursuing the appeal, if indeed he was financially indigent at the time. As for the remainder of the period of delay, there is no explanation at all. That being the case, the explanation of being stranded without financial resources, does not amount to a frank and true explanation. That explanation is also dented by the failure to have approached the institution whose mandate it is to avail legal representation to indigent persons in Namibia. All in all, it does not constitute an acceptable or reasonable explanation.

[15] In the absence of a reasonable explanation for the delay, the merits of the appeal, specifically the reasonable prospects of success on appeal, are significant and can tip the scales for granting the application for condonation and consideration of the merits of an appeal.³ We will now proceed to deal with the second leg of the test, which deals with prospects of success.

Reasonable prospects of success on appeal

[16] The second leg of the enquiry is whether the applicant has shown that he has reasonable prospects of success on appeal. To answer this aspect of the enquiry, one has to advert to the affidavit of the appellant. It is important to note that the appellant was assisted by a legal practitioner when he drafted the application for condonation. However, this affidavit is as brief as can be. The appellant, in one short paragraph stated the following regarding the issue of prospects of success at para 4.2:

‘I further state, that I am advised that I enjoy good prospects of success on appeal, and in that respect, I refer the honourable Court to my Notice of appeal dated 03 August 2022 and pray that same be incorporated herein as if specifically state.’

The question that arises is whether that averment meets muster to establish that the applicant has prospects of success?

[17] A reading of the above paragraph, particularly the first, we must say reflects some reluctance at worst, or at best, a half-hearted attempt on the part of the deponent to deal with the pertinent issue of prospects of success. From the authorities, it is clear that this is an issue that must be squarely addressed as it carries considerable weight in the decision whether or not to grant condonation. It is not one that an applicant for condonation must pay lip service to or one which he may deal with laconically or with some element of reluctance. It is an important cog in the entire enquiry.

[18] We are of the considered view that the issue of establishing prospects of success on appeal is not a question of a mere formality. In S v Sagarias it was stated at para 18:

‘In applications of this sort, the deponent is required to briefly and succinctly set out essential information to enable the court to assess the appellant’s prospects of success on appeal. At the very least, it calls for a concise reference to established legal principle(s) or applicable case law that forms the basis of the appellant’s belief that he has prospects of success on appeal.⁴

[19] It is not acceptable, correct nor fair for an applicant for condonation to merely make loosely assembled allegations and expect the court to do research for that party and in the process plough through the entire record to find for itself what may have been in the applicant’s contemplation, when he merely alleged he had reasonable grounds of success. Nor is it indicative of prospects of success to merely list the grounds of appeal or refer the court to the grounds as listed in the Notice of Appeal. Parties are expected to assiduously make their respective cases and to assist the court in making what will hopefully be the correct decision in their favour.

[20] Having regard to the papers filed of record before me, we are of the view that the applicant assumed a relaxed approach to condonation and thus, failed to show that he has prospects of success on appeal. We cannot, in the circumstances find that this is a proper case in which to grant an application for condonation for lack of effort, necessary information and pertinent allegations. We are of the considered view that one of the necessary requirements has not been sufficiently dealt with or satisfied by the applicant herein.

[21] In the premises, I make the following order:

1. The point in limine is upheld.

2. The application for condonation for the late filing of the appellant's notice of appeal is refused.

3. The appeal is struck from the roll and regarded as finalised.

________________

P CHRISTIAAN

JUDGE

I agree,

_______________

C CLAASEN

JUDGE

APPEARANCES

APPELLANT: L Haufiku (In person)

Haufiku & Associates

Swakopmund

RESPONDENT: T T Iitula

Office of the Prosecutor-General

Windhoek