Court name
High Court Main Division
Case name
Kahiha v S
Media neutral citation
[2013] NAHCMD 206
Judge
Ndauendapo J
Siboleka J













NOT REPORTABLE








REPUBLIC OF NAMIBIA








HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



CASE NO: CA 10/2012








In the matter between:



LUTHER KAHIHA
.......................................................................................APPELLANT








vs








THE STATE
.............................................................................................RESPONDENT








Neutral citation:
Kahiha v State (CA 10/2010) [2013] NAHCMD 206 (22 July
2013)








Coram:
NDAUENDAPO J and SIBOLEKA J



Heard on: 15 October
2012



Delivered on: 22 July
2013













Flynote: Criminal
Law – Application for leave to appeal against sentence.








Criminal Law: The
applicant failed to satisfy this court that there are reasonable








prospects of success on
appeal – application dismissed.








Summary: On 17
March 2011 the Regional Court Magistrate at Gobabis sentenced the
applicant, a stock theft repeat offender, to five years imprisonment
for stealing twenty three sheep valued N$18 400.00.








Held: The application can
only succeed if the Appeal Court is satisfied that there are
reasonable prospects that the Supreme Court would come to a different
conclusion should the appeal be granted.








Held: The application for
leave to appeal had to be dismissed.



________________________________________________________________



ORDER



________________________________________________________________








The application for leave
to appeal against sentence is dismissed.



________________________________________________________________



JUDGMENT



________________________________________________________________








SIBOLEKA J (NDAUENDAPO J
concurring):








[1] On 15 October 2012
this court dismissed the appellant’s application for leave to
appeal, and stated then that the reasons would follow later. Here
follows the reasons.








[2] During the
proceedings the appellant appeared in person, while Mr Eixab acted
for the State. The court is indebted to his valuable assistance in
this regard.








[3] The appellant, a
second stock theft offender was convicted in the Regional Court at
Gobabis for stealing 23 sheep valued N$18 400.00 and sentenced to
five years in prison. He lodged an appeal against that sentence which
was dismissed in this court on June 08, 2013. He now seeks for leave
to appeal against that ruling on the following grounds:








Grounds for leave to
appeal:



1.
Their Lordships erred in wrongly summarizing the Application for
leave to appeal for an alternative imprisonment.



2.
Their Lordships erred in failing to find out that Appellant in his
heads of argument did not state the court a quo has
misdirected himself during sentencing.



3.
Their Lordships erred in failing to find out that the court a quo
has failed to consider the following:



3.1
Appellant compensated the complainant.



3.2
Appellant pleaded guilty and showed remorse.



3.3
Appellant turned a state witness against his co-accused to assist the



State
for possible prosecution.



4.
Furthermore that Appellant didn’t state that the sentence of
five (5) years imprisonment is unreasonable, Appellant only appealed
for a fine coupled with suspended sentences.



5.
Their Lordships erred in failing to mention in their appeal judgment
law reports Appellant quoted in his argument to support his
application for alternative imprisonment.



6.
Their Lordships erred in failing to remind themselves that first,
second or third offenders are given a chance due to their substantial
heads of argument and personal circumstances, see
S
v Ludick
1987 (4) SA
197 (NC).’








[4] As stated in this
court’s appeal judgment on this matter the above are mitigatory
factors and not ‘grounds of appeal’ as contemplated in
section 316 (2) of the Criminal Procedure Act 51 of 1977 which
provides as follows:








Every
application for leave to appeal shall set forth clearly and
specifically the Grounds upon which the accused desires to appeal …’








[5] In S v Swanepoel
1978 (2) SA 410 at 410H: the Court said the following:








Leave
to appeal to the Appellate Division against a conviction and sentence
in



a
Supreme Court must only be granted by the trial Judge if in the
Judge’s own opinion the applicant has a reasonable prospect of
succeeding on appeal.’








[6] In this court’s
view the appeal is such that it has no reasonable prospects in
persuading the Supreme Court to arrive at a different conclusion.








[7] In the result, the
application for leave to appeal is dismissed.

































_____________



A M SIBOLEKA



Judge




























__________________



G N NDAUENDAPO



Judge























APPEARANCES








APPELLANT: In Person


















RESPONDENT: Mr Eixab



Office of the
Prosecutor-General, Windhoek