Court name
High Court Main Division
Case number
CA 12 of 2013
Title

Londeni and Another v S (CA 12 of 2013) [2013] NAHCMD 210 (12 July 2013);

Media neutral citation
[2013] NAHCMD 210
Coram
Ueitele J
Unengu AJ












REPUBLIC
OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



APPEAL JUDGMENT







Case no: CA 12/2013





In
the matter between:






PATRICK LONDENI
..................................................................................1ST
APPELLANT



ELIFAS HAUKONGO
................................................................................2ND
APPELLANT







and







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







Neutral citation:
Londeni v The State (CA 12/2013) [2013] NAHCMD 210 (12
July 2013)







Coram: UEITELE, J
and UNENGU, AJ


Heard:
12 July 2013


Delivered:
12 July 2013







Flynote: Criminal
Procedure – appeal – notice of appeal – filed
outside the time limit of 14 days – Magistrate Court Rule, Rule
67 (1) read with Criminal Procedure Act section 309 (2) of Act 51 of
1977 – failure to seek condonation – appeal struck from
the roll.



Summary: The
appellants appeared in the Regional court sitting at Mungunda Street,
Windhoek facing charges of robbery with aggravating circumstances,
contravening section 2 of Act 12/1999 as amended –i.e. theft of
motor vehicle and attempted murder. The appellants pleaded not guilty
but were found guilty as charged. On 30 July 2012, they were each
sentenced to 7 years imprisonment with 2 years suspended on the first
count, 10 years imprisonment on the second count and 3 years
imprisonment on the third count.







Held that in terms
of section 309 (2) of Act 51 of 1977, the court of appeal can condone
an applicant’s failure to timeously file his notice of appeal.
This can be done if the applicant provides an explanation in an
affidavit which is acceptable to the court as to why he was unable to
file his notice of appeal within the prescribed time limits.







Held that the
first appellant has not applied for condonation for the late filing
of his appeal, he has also not tendered an explanation as to why his
appeal is out of time, that the first appellant’s appeal is not
properly before this Court.







Held that second
appellant has not filed a notice of appeal and has no locus standi
before this Court.







That the appeal in
respect of first and second appellant is struck from the roll.







______________________________________________________________________



ORDER


______________________________________________________________________







The appeal is struck from
the roll.



















______________________________________________________________________



APPEAL JUDGMENT







UNENGU AJ (UEITELE J
CONCURRING)



[1] The appellants
appeared in the Regional court sitting at Mungunda Street, Windhoek
facing charges of robbery with aggravating circumstances,
contravening section 2 of Act 12/1999 as amended i.e. theft of motor
vehicle and attempted murder. The appellants pleaded not guilty but
were found guilty as charged. On 30 July 2012, they were each
sentenced to 7 years imprisonment with 2 years suspended on the first
count, 10 years imprisonment on the second count and 3 years
imprisonment on the third count.



[2] First appellant filed
a notice of appeal against conviction and sentence on 14 September
2012. On 4 July 2013, the second appellant filed a supporting
affidavit in an application for condonation, without stating what
must be condoned.



[3] The second appellant
claims that his name did not appear on the notice of set down for the
hearing of the appeal and that the notice filed by first appellant
includes him as well in paragraph 5 of the document titled
“Applicant’s Supporting Affidavit in Re Condonation
Application” filed with the registrar on 4 June 2013. He
further wrote another letter filed with the registrar on 7 June 2013
wherein he says in paragraph 1 that he filed his notice of appeal
separately with first appellant.



[4] Ms Ndlovu, who
represented the State in this appeal,
filed
comprehensive heads of argument and raised points
in
limine
that
the first appellant was sentenced on 30 July 2012, but has filed his
notice of appeal with the clerk of the court on 14 September 2013
which is outside the time limit of 14 days as prescribed by the Rules
of the Court
1.
She submitted that there was no notice of appeal by the second
appellant before this Court. She stated that the second appellant
claims that the notice filed by first appellant includes him as well
in paragraph 5 of the document titled “Applicant’s
Supporting Affidavit in Re Condonation Application” filed with
the registrar on 4 June 2013. She submitted that the wording of the
notice of appeal refers only to the first appellant. There is nothing
in the notice indicating that there was just an omission of the
second appellant’s name. Second appellant also wrote another
letter filed with the registrar on 7 June 2013 wherein he says in
paragraph 1 that he filed his notice of appeal separately with first
appellant. She submitted that the second appellant has not filed a
notice of appeal and has no locus standi before this Court.



[5] The first appellant
has not applied for condonation for the late filing of his appeal, he
has also not tendered an explanation as to why his appeal is out of
time
2,
she submitted that the first appellant’s appeal is not properly
before this Court and Ms Ndlovu prayed that it be struck from the
roll.



[6] The application for
condonation by the second appellant appears to be in respect of the
omission of his name in the first appellant’s notice of his
appeal. The second appellant is not applying for condonation for the
late noting of appeal. There is nothing before this Court entitling
second appellant to be heard. Ms Ndlovu prayed that the matter be
struck from the roll for both appellants.



[7] The Magistrate Court
Rules, Rule 67 (1) requires that convicted persons desiring to appeal
under section 309 (1) of the Criminal Procedure Act 51 of 1977



shall within 14
days after the date of conviction, sentence or order in question,
lodge with the clerk of the court a notice of appeal in writing in
which he shall set out clearly and specifically the grounds, whether
of fact or law or both fact and law on which the appeal is based…



[8] In terms of section
309 (2) of Act 51 of 1977, the court of appeal can condone an
applicant’s failure to timeously file his notice of appeal.
This can be done if the applicant provides an explanation which is
acceptable to the court as to why he was unable to file his notice of
appeal within the prescribed time limits. Meanwhile, Mr Ipumbu who
defended one of the appellants during the trial in the court below
sought permission from Court to say something on behalf of the
appellants – however, permission was refused because Legal Aid
did not appoint him yet.



[9] The Court agrees with
the State’s submissions in respect of first appellant that the
first appellant has not applied for condonation for the late filing
of his appeal. He has also not tendered an explanation as to why his
appeal is out of time, that the first appellant’s appeal is not
properly before this Court and that it be truck from the roll.



[10] The Court further
agrees with the State’s submissions in respect of second
appellant that the second appellant has not filed a notice of appeal,
therefore, has no locus standi before this Court and that it
be truck from the roll.



[11] In the result the
following order is made:



The appeal is struck from
the roll.













---------------------------------



Unengu



Acting Judge























---------------------------------



SFI Ueitele



Judge








APPEARANCES







FIRST APPELLANT: In
Person



SECOND APPELLANT: In
Person







RESPONDENT: E N Ndlovu



Of Office of the
Prosecutor-General













1The
Magistrate Court Rules, Rule 67 (1) read with section 309 (1) of the
Criminal Procedure Act 51 of 1977; Nakale v The State Case no SA
04/2010 at 6 para 7.





2S
v Abraham Ruhumba CA 103/2003 an unreported judgment delivered on 24
February 2004; Kalenga Iyambo v The State case number CA 165/2008 an
unreported judgment delivered on 19 October 200 at 5.