Court name
High Court Main Division
Case number
CC 2 of 2004
Title

Nashapi v S (CC 2 of 2004) [2013] NAHCMD 291 (17 October 2013);

Media neutral citation
[2013] NAHCMD 291
Coram
Cheda J













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



REASONS



Case no: CC 02/2004








In the matter between:








ELIAKIM NASHAPI
.......................................................................................APPELANT








and








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








Neutral citation:
Nashapi v S (CC 02/2004) [2013] NAHCMD 291 (17 October
2013)








Coram: CHEDA J



Heard: 23
September 2013



Delivered: 17
October 2013








Flynote: Application
for condonation – Need to make a full disclosure about reasons
for non-compliance – Courts will not syphathise with an
untruthful applicant – Application dismissed.








Summary: Applicant
gave contradictory statements about his non-compliance with rules in
application for late noting appeal. Application for condonation was
made 8 years after sentence, reasons were unsatisfactory -
Application was dismissed as applicant was not candid with the court.










ORDER










The Applicant’s
application for condonation of late filing of the appeal and leave to
appeal is dismissed.





REASONS










CHEDA J [1] On the
23rd of September 2013 this application was heard by me.
At the end of the hearing, I dismissed it with my reasons to follow.
These are they.








[2] This is an
application for condonation for the late filing of the appeal and
leave to appeal. Applicant was convicted of murder and sentenced to
30 years imprisonment on the 8th of September 2004. On the
11th of April 2013, he noted an appeal against sentence
and an application for condonation of late filing of the appeal.








[3] In terms of Rule 67
(i) of the Magistrate’s Court Rules, a convicted person is
obliged to appeal his sentence under s 309 (1) of the Criminal
Procedure Act of 1977 within 14 days of his sentence. Applicant
lodged his appeal 8 years and five months after his conviction and
sentence. There was therefore a need for him to apply for condonation
for late noting of appeal.








Applicant is a layman and
as such, appeared in person. In furtherance of his application,
thereof, he filed an affidavit wherein he stated that he initially
filed his application for leave to appeal on the 17th
September 2004. He was not favoured with a response from the
Registrar which prompted him to seek the intervention of the
Ombudsman on 12 March 2006. The Ombudsman responded and advised him
that the respondent’s office was not in receipt of his
application.








[4] In his oral
submission, applicant stated that he failed to lodge his application
for leave to appeal against his sentence timeously because he was not
aware of the requirements of an appeal. It is, however, noted at this
stage that applicant was represented by Mr Sisa Namandje during his
trial. When asked whether his legal practitioner did not advise him
of his rights in relation to appeal, he was adamant that he did not.








[5] The process of appeal
is an integral part of any democratic legal system. The courts,
therefore treat it with the seriousness and importance it deserves as
it is an individual’s right to do so. It is for that reason
that any application by a litigant which is aimed at the attainment
and enforcement of his right will not be easily dismissed by the
courts. These courts have always entertained late filing of appeals
provided that good cause is shown by the applicant. It is, therefore,
incumbent upon applicant to make a full disclosure of the
circumstances of his case in order for the court to make a decision
from an informed position.








[6]
Applicant bears the onus of giving a good explanation for his failure
to appeal timeously. It is not necessary for the question of success
on appeal to be considered. In order for applicant to succeed in his
application he should give a convincing explanation to court if he is
to avoid blame for non-compliance with the rules. This principle
which is persuasive is now part of our law and was considered and
adopted in
S
v Kashire
1
(South West Africa
Division) and
S
v Leon
2
(as it then was). I am
persuaded to adopt the reasoning in these cases.








[7]
Applicant’s explanation for non-compliance is difficult to
believe. In his founding affidavit filed with the court, he stated
that he filed his notice in time,
but,
in court he stated that
he was not aware of his legal rights or the requirements to file
within a specific period, namely 14 days. There is a glaringly
contradiction in his matter. Either, one of the statements or both
are false. I do not think that he was truthful when he stated that Mr
Namandje did not advise him of his legal rights regarding the appeal.

Mr Namandje is a legal
practitioner of great repute and an experienced one,

too. He is meticulous in
his work, this with due respect is an error he would not have made.
The Latin maxim,
falsus
in uno,
falsus
in omnibus
(false
in one, false in everything
)
comfortably fits in this scenario.








[8] There is no way there
can exist two different truths in any one given situation. Where a
litigant, in its quest for justice seeks a sympathetic hearing, it is
incumbent upon it to take the court into its confidence by making a
full disclosure of its circumstances. The court can only determine an
issue on the basis of facts genuinely laid before it by those who
seek a redress of wrongs either real or imagined. When such truth is
lacking the court so seized with the matter will no doubt be disabled
in its fair and just adjudication.








[9] It is for those
reasons that this application was dismissed as it lacked bona
fides
and was not meritorious.























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



M Cheda



Judge













APPEARANCES








APPELLANT: In
Person



Windhoek Central Prison








STATE:
B Wantenaar



Of the Office of the
Prosecutor General



Windhoek



















1S
v Kashire 1978 (4) SA 166.





2S
v Leon 1996 (1) SACR 671 (A)