REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: CA 96/2010
In the matter between:
Ditshabue v State (CA 96/2010)  NAHCMD 132 (12 April
Coram: PARKER AJ
and MILLER AJ
Heard: 12 April
procedure – Appeal – Record incomplete – Court must
decide whether despite incomplete record all the evidence is before
the court for the court to make a decision on the appeal and whether
appellant is prejudiced by any indistinct parts of the record.
procedure – Appeal – Record incomplete – In casu
certain parts of the record are incomplete – Court decided that
the record is comprehensible and adequate for a proper consideration
of the appeal as all the relevant evidence necessary for the court to
make a decision is before the court – Court found that the
indistinct parts are not such that the court could not make a sense
out of the evidence that was adduced and that the appellants are not
prejudiced in any way by certain parts being indistinct.
procedure – Sentence – Appellant contending that trial
court emphasized seriousness of the offence compared with the
personal circumstances of appellants – Court finding that the
trial cannot be faulted in doing that.
procedure – Sentence – Appellant contended that the trial
court emphasized seriousness of the offence compared with the
personal circumstances of the appellants – Court rejected such
argument on the basis that there is no inflexible rule of law to the
effect that a trial court may not emphasize one or more factors in
sentencing at the expense of others – Court confirmed sentence
as the sentence imposed did not induce a sense of shock in the mind
of the court and the sentence is not so severe that it is unjust or
unreasonable, considering the circumstances of the commission of the
The appeal against
conviction and sentence is dismissed.
PARKER AJ (MILLER AJ
Appellants 1, 2 and 3 appeared before the Regional Magistrates’
Court, Gobabis on a charge of robbery. Additionally,
appellants 1 and 3 were also charged with contravening
ss 1, 38(2) and 39 of the Firearms Act 7 of 1996; that is, possession
of firearm without a licence. The appellants pleaded not guilty to
all the counts. They were tried and found guilty as charged. Each
appellant was sentenced to 20 years’ imprisonment on 9 October
2008. They now appeal against conviction and sentence.
The respondent, represented by Ms Ndlovu, raises a point in
limine on the basis that the appellants filed
their notices of appeal out of time, and there are no applications
filed of record seeking condonation of the late filing of the
notices. In the course of the hearing counsel informed the court that
the respondent was not pursuing that point. The
appellants also informed the court that they were representing
themselves; and they had filed heads of argument, as
did Ms Ndlovu.
In the course of his submission appellant 1 informed the court that
he wanted to apply for legal aid. Ms Ndlovu opposed this request at
this late hour in the proceedings. In any case, the appellants had
informed the registrar that they would represent themselves. At an
earlier hearing in 2010 appellants had requested, and had been given,
the opportunity to seek legal representation. After almost three
years and there being nothing on the record to indicate to the court
why appellant 1 was not successful in obtaining legal representation,
we ruled that the court could not accept the appellant’s
request. In addition to their written
submissions, the appellants and Ms Ndlovu made
oral submissions. We have carefully considered
the written submissions and the oral submissions, as we should.
On the ground of incomplete record of the proceedings in the lower
court, we are satisfied that the record of proceedings is
comprehensible and adequate for a proper consideration of the appeal.
(See S v Chabedi 2005
SACR 415(SC).) All the relevant evidence necessary for the court to
make a decision on the appeal is now before the court. The indistinct
parts are not such that one cannot make a sense out of the evidence
that was adduced; and the appellants are not prejudiced in any way by
certain parts being indistinct.
We have pored over the record of proceedings, as well as the judgment
of the learned regional magistrate. The only main basis why the
appellants have appealed against conviction is simply this.
All that the appellants say is that they were not
involved in the commission of the crime and that there is nothing
linking them to the crime. Having considered the record and the
judgment of the learned regional magistrate, we find that no
irregularities or misdirections have been proved or are apparent on
the record. In that case, as was held on S vs
Slinger 1994 NR 9 at 10D-E, this court
sitting as a court of appeal will not reject the findings of
credibility by the trial court and will usually proceed on the
factual basis as found by the trial court. We accept this principle
as good law and so we apply it. It follows that we cannot fault the
lower court for finding the appellants guilty as charged.
We have considered the sentence imposed by the lower court. The
ground that the lower court misdirected itself because it
overemphasized the seriousness of the offence compared with the
personal circumstances of the appellants has no merit. There is no
inflexible rule of law to the effect that a trial court may not
emphasize one or more factors in sentencing at the expense of others.
A court may do so if the circumstances demand it. In any case the
appellants have not given any reason why the lower court was not
entitled to do so. Furthermore, it is trite that sentencing is
primarily within the discretion of the trial court. An appellate
court may only interfere if the sentence imposed is so severe that it
comes to the appellate court with a sense of shock or it is so severe
that it is unjust or unreasonable.
We have taken into account the circumstances of the commission of the
offence; an offence committed with aggravating circumstances. We have
looked at the sentence to see if it comes to us with a sense of
shock. (See S v Ndikwetepo
and Others 1993 NR 319 (SC).) It does not.
Besides, the sentence does not appear to us to be
so severe that it is unjust or unreasonable. (See Harry
de Klerk v The State SA 18/2009
 Having considered
these reasoning and conclusions against the grounds put forth by the
appellants, we are not persuaded that the learned regional magistrate
misdirected himself when he imposed the sentence of 20 years’
In the result, the appellants’ appeal
against conviction and sentence is dismissed.
P J Miller
FIRST APPELLANT: In
SECOND APPELLANT: In
THIRD APPELLANT: In
RESPONDENT: E N Ndlovu
Of Office of the Prosecutor-General,