Matheus and Another v S (HC-NLD-CRI-APP-CAL-2024/00012) [2025] NAHCNLD 17 (7 February 2025)

Case Title:

Kandindima Matheus and another v The State

Case No:

HC-NLD-CRI-APP-CAL-2024/00012

Division of Court:

Northern Local Division

Heard before:

Honourable Lady Justice Salionga, J et

Honourable Mr Justice Kesslau J

Heard on: 25 October 2024

Delivered on: 7 February 2025

Neutral citation: Matheus and another v S (HC-NLD-CRI-APP-CAL-2024/00012) [2025] NAHCNLD 17 (7 February 2025)

The order:

1. The Respondent’s first and second points in limine are dismissed.

2. The Respondent’s third point in limine is partially upheld in respect of the third ground of appeal.

3. The application for condonation is granted.

4. In respect of count 1, the first ground of appeal succeeds and thus the conviction and sentence of the second appellant on this count are set aside.

5. In respect of count 2, the appeal succeeds in that the sentences of both Appellants are amended to read: ‘A fine of N$ 15 000 or in default of payment 18 months’ imprisonment.’

6. The sentences imposed are antedated to 29 January 2024.

Reasons for decision:

KESSLAU J (SALIONGA J concurring)

Introduction

[1] The appellants were charged in the Magistrate Court of Oshakati with the offenses of count 1: Contravening regulation 3(2) of the Regulations to the Petroleum Products and Energy Act 13 of 1990, as amended, (the Act) - Possession or storage of fuel in excess of 200 litres and; count 2: Contravening regulation 3(1) of the Regulations to the Act- Operating a fuel retail outlet without a licence. Both accused pleaded guilty to both counts. Thereafter, they were questioned by the Magistrate in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977 as amended, (CPA).

[2] The magistrate, not satisfied with the guilt of the first appellant on the first count, entered a plea of not guilty in terms of s 113 of the CPA in that respect. On the second count the first appellant was convicted as charged. The second appellant was convicted on both counts 1 and 2. After evidence was led, the first appellant was found not guilty on count 1. The sentences imposed were 18 months’ imprisonment on each count resulting in an effective 18 months’ imprisonment for the first appellant and 36 months’ imprisonment for the second appellant.

[3] With the assistance of counsel, the first appellant filed a notice of appeal against the sentence imposed (count 2), whilst the second appellant filed a notice of appeal against the conviction on count 1 and the sentences imposed (counts 1 and 2).

[4] The second appellant’s ground of appeal against the conviction in respect of count 1 is that:

‘1. The learned Magistrate erred in fact and/or in law by failing to consider and/or take into account that finding the appellant guilty of possession of fuel in excess of 200 liters in contravention of regulation 3(1)(a) of the Petroleum Products and Energy Act 13 of 1990 as amended in circumstances where the appellant was also convicted of contravening regulation 3(1)(a) of the same Act amounts to a duplication of charges.’

[5] The first and second appellants’ grounds of appeal against sentences are as follows:

‘2. The learned Magistrate failed in fact and/or in law by failing to assist the unrepresented accused persons by failing to solicit information necessary to reach a just and suitable sentence.

3. The learned Magistrate erred in facts and/or in law by downplaying the appellant’s personal circumstances over those of society as far as the circumstances of this case is concerned;

4. The learned Magistrate erred on the ground of fact and/or law by emphasizing as an aggravating factor that the manner in which the containers were kept possess a risk to the community members when no such evidence was led. (This finding was not supported by evidence on record);

5. The learned Magistrate erred in fact and/or in law by not placing sufficient weight on the appellants plea of guilt;

6. The learned Magistrate erred on a ground of fact and/or law by overemphasized the deterrence nature of punishment;

7. In respect of accused 2 only – the learned magistrate failed to take into account the cumulative effect of the sentence of 18 months on each of the two counts preferred against the second appellant.

8. The sentence imposed by the learned magistrate is unjustified and shocking and not in line with sentences of similar facts.’

[6] When the matter first appeared, counsel for the appellants requested for a further date as she experienced challenges consulting with her clients who were incarcerated. The notice that was issued by the Registrar for the initial date indicated that the matter was set down for ‘hearing’ on 20 August 2024 whilst simultaneously, it was scheduled on the appeals mentions roll for a ‘status hearing’. The respondent, who interpreted the Registrar’s notice of hearing as such, complied with Rule 118(6) and filed heads of argument in time for the initial date. Counsel for the respondent indicated they will be raising the point in limine that appellants failed to comply with Rule 118(6) by not filing heads of argument. Another date was provided for a hearing on the request of counsel for the appellants. Counsel for the appellants then failed to comply with Rule 118(6) to file 15 days prior to this date. However, this time an application for condonation was brought for the failure in respect of the second date.

[7] The respondent raised three points in limine being: Firstly that the appellants failed to comply with Rule 118(6) in respect of the first date of appearance; secondly that the application for condonation that was subsequently filed in respect of the second date is defective in that it consisted of an affidavit from counsel and that it was filed without supporting affidavits of the appellants and; thirdly that the grounds of appeal are defective, vague and embarrassing.

Respondent’s points in limine

[8] The first point in limine was that for the initial date scheduled, the appellants failed to comply with Rule 118(6) to file heads of argument and did not request condonation for such failure. Whilst the Registrar indicated that the matter is for hearing on the notice issued, the matter was scheduled on the appeals mentions roll for a status hearing. As was submitted by counsel for the appellants, the practise has developed that the first appearance is never used as a date of hearing as it is only scheduled before a single judge whilst appeals are heard before two judges. Additionally, it was argued that the matter was on the appeals mentions roll for a ‘status hearing’ which was an indication, even though in contradiction to the notice issued by the Registrar, that it was to establish if the matter is ripe for a hearing. Even though, strictly speaking, the respondent has a point, it would be unfair and severely prejudicial to the appellants to upheld this point in limine as the confusion was created by the Registrar’s office. The Registrar was requested to, in future, indicate on the notice of hearing that the matter will be appearing on the appeals mentions roll for a ‘status hearing’.

[9] The second point in limine raised by the respondent was that the application for condonation that was filed in respect of the late filing for the heads of argument for the ‘second date’ of hearing was defective in that it is supported only by the sworn affidavit of counsel and not the appellants. In the application for condonation it is indicated that the reasons for late filing were staff shortages at the offices of counsel and the fact that, due to multiple resignations, counsel was responsible for three different diaries of staff that had left the office. From this explanation it is clear that the appellants would have no knowledge to add anything and sworn statements from them would serve no purpose. Even though it is discouraged for counsel to file affidavits on behalf of their clients, the circumstances in this matter is exceptional.¹ Therefore, this point in limine is dismissed.

[10] The third point in limine was that the grounds of appeal were vague and embarrassing. We agree with counsel for the respondent that the third ground of appeal against sentence merely amounts to the opinion of the writer. It is therefore vague. The rest of the grounds are specific and it cannot be said to be vague or embarrassing. This point in limine is therefore upheld in respect of the third ground of appeal.

Appellant’s application for condonation

[11] In considering the application for the condonation of the late filing, the requirements are twofold. It consists firstly in deciding on the reasonableness of the explanation for the late filing and secondly the prospects of success on the merits. The circumstances of each case should be taken into account. The granting or refusing of condonation falls entirely within the discretion of the Court. Gibson J in S v Nakapela and Another² stated the following at para 185G-H:

‘ln my opinion, proper condonation will be granted if a reasonable and acceptable explanation for the failure to comply with the sub-rule is given; and where the appellant has shown that he has good prospects of success on the merits of the appeal.’

The appellant’s reason for late filing

[12] The reason provided for the failure to comply with Rule 118(6) was, as mentioned before, that multiple lawyers resigned at the firm where counsel is employed and therefore it resulted in her being responsible for a multitude of matters that were already scheduled as per the various diaries of the resigned staff. In the circumstances, it appears to be a reasonable and acceptable explanation for the delay and therefore we will proceed to consider the second leg of the enquiry being the prospects of success.

Prospects of success

[13] The first ground of appeal is against the conviction of the second appellant on both counts as it ‘amounts to a duplication of charges’. In oral submissions counsel explained that this was an error and should read a duplication of convictions. Despite the obvious error, the meaning of this ground remains clear. The test to be applied has been well established in our jurisprudence³ and consist of courts applying the test of single intention and/or the same evidence test. These test can be applied conjunctively or separately. In cases where neither test is appropriate, the court should adopt a common sense approach.

[14] Count 1 was a contravention of the storage of fuel in excess of 200 litres in a local authority area, whilst count 2 referred to operating an unlicensed retail business in the selling of the fuel. Both counts relied on the same set of facts with the fuel being at the centre of each charge. From the record it is clear that the fuel was stored not for own use, but with the intent to sell it to prospective buyers. The separate intent to keep the fuel for own use was not covered during questioning by the Magistrate. Additionally, the second appellant did not admit in questioning that the fuel was held within the area of a local authority. That aspect is one of the elements of the offense created in count 1. When applying the single intent and same evidence test as stated above, this court is of the opinion that the charges do not amount to a duplication of convictions providing that the separate intent is sufficiently covered during questing or evidence. Due to the errors surrounding the questioning in respect of count 1, the conviction is not in order and cannot be allowed to stand. Having reached this conclusion, it is not necessary to discuss the 7^th ground of appeal which was aimed at the effect of the cumulative sentences imposed on the second appellant.

[15] The remainder of the grounds of appeal are concentrated on the sentences imposed. It is well settled in our law that punishment falls predominately within the ambit and discretion of the court and may only be interfered with on appeal when is it evident that the sentencing court did not exercise its discretion judiciously in that the sentence is either vitiated by an irregularity or misdirection, or that it is disturbingly inappropriate and induces a sense of shock. Furthermore a court of appeal would be generally reluctant to erode the trial Court's discretion as such erosion could undermine the administration of justice.⁴

[16] Turning now to the grounds of appeal against sentence. The second ground was basically that the Magistrate failed during mitigation to assist the unrepresented appellants to solicit information necessary to reach a suitable sentence. The record reflects that the right to mitigate before sentence was properly explained to both appellants. It was also explained to them that evidence under oath would carry more weight than a mere address from the dock. Both indicated that they wished to mitigate from the dock. Thereafter, both the appellants proceeded to disclose their personal circumstances in mitigation. Afterwards, the Magistrate invited both appellants to add additional information. We cannot find this ground to have any prospects of success.

[17] The third ground was found to be vague. The fourth ground was that the Magistrate erred by emphasizing as an aggravating factor that the manner in which the containers were kept possess a risk to the community members when no such evidence was led. This court cannot agree with this ground as the evidence clearly indicated that the fuel were kept in a multitude of plastic containers on premises which also served as a shebeen. Fuel is flammable and when kept in such sub-standard conditions logically a risk to employees and clientele of this establishment. The Magistrate was entitled to draw such logic conclusion. Therefore, this ground holds no prospects of success.

[18] The 5^th, 6^th and 8^th grounds of appeal are all interlinked and will be discussed together. In summary, these grounds criticized the Magistrate for imposing a shocking sentence by overemphasizing the aim of deterrence whilst not placing sufficient weight on the guilty pleas of the appellants.

[19] The Magistrate in a well-reasoned judgment on sentence, inter alia considered the extensive quantity of fuel that was found at this illegal retail business; the fact that it constituted a health and safety hazard to all involved and; the economic impact in the form of financial loss to lawful business owners and the Namibian Government. These offences are handled in the lower court and thus the Magistrate was best situated to evaluate the prevalence of the said offense.

[20] On the other hand, the appellants pleaded guilty; were first offenders and; appeared not to be the main role players of the illegal operation. The penalty clause, as per s 21 of the Act, allows for a fine not exceeding N$20 000 or to imprisonment for a period not exceeding two years or to both such fine and imprisonment. When comparing this matter with similar cases, it appears that a fine as option were given during sentencing. Whereas the general aim should be for first offenders to possibly avoid direct imprisonment, this court is of the opinion that the option of a fine should have been added to this sentence. We therefore found that these ground have the prospect of success.

[21] In the result the following orders are made:

1. The Respondent’s first and second points in limine are dismissed.

2. The Respondent’s third point in limine is partially upheld in respect of the third ground of appeal.

3. The application for condonation is granted.

4. In respect of count 1, the first ground of appeal succeeds and thus the conviction and sentence of the second appellant on this count are set aside.

5. In respect of count 2, the appeal succeeds in that the sentences of both Appellants are amended to read: ‘A fine of N$ 15 000 or in default of payment 18 months’ imprisonment.’

6. The sentences imposed are antedated to 29 January 2024.

Judge(s) signature:

Comments:

KESSLAU J

None

SALIONGA J

None

Counsel:

APPELLANTS

RESPONDENT

Ms M M Amupolo

Of Jacobs Amupolo Lawyers

Ongwediva

Adv L P Shipila

Of the Office of the Prosecutor-General, Oshakati