REPUBLIC
OF NAMIBIA

NOT
REPORTABLE

HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case
no: CA 94/2013

In
the matter between:

THE STATEAPPELLANT

and

WESSEL
DE
JAGER....................................................................1^ST
RESPONDENT

HENRY
GROTKOFF
…................................................................2^ND
RESPONDENT

ANDRIES
ALBRIGHTSEN...........................................................3^RD
RESPONDENT

PIETER
FOX.................................................................................4^TH
RESPONDENT

JOACHIM
GROTHKOPT..............................................................5^TH
RESPONDENT

Neutral
citation: The
State v De Jager (CA
94/2013) [2013] NAHCMD 353

(21
November 2013)

Coram:
HOFF J

Heard:
15 November 2013 (In
Chambers)

Delivered:
21
November 2013 (In
Chambers)

Summary:
The
Prosecutor-General may in terms of s 310(1) of Act 51 of 1977 appeal
inter
alia
against an order made in a lower court.

In
terms s 310(2)(a) such application must be lodged within 30
days of such order or within such extended period as may on
application on good cause be allowed – Application for leave to
appeal lodged more than eleven months late.

Applicant
has not dealt with the issue of condonation at all and therefore no
explanation for the late filing of the application for leave to
appeal is provided – Court declines to consider application for
leave to appeal – Application is struck from the roll –
In terms of s 310(7) of Act 51 of 1977 State is ordered to pay costs
respondents have been put to in opposing the application.

ORDER

(a)
The application for leave to appeal is struck from the roll.

(b)
In terms of s 310(7) of Act 51 of 1977 the State is ordered to pay
the costs the respondents have been put to in opposing this
application.

JUDGMENT

HOFF J

[1]
The respondents were arraigned in the Regional Court, Mungunda street
Windhoek, in respect of the unlawful dealing in a dangerous
dependence producing drug, namely cocaine, in contravention of the
provisions of s 2(c) of Act 41 of 1971, alternatively having
been unlawfully in possession of the said cocaine in contravention of
the provisions of s 2(d) of Act 41 of 1971.

[2]
The respondents were discharged at the conclusion of the State’s
case in terms of s 174 of the Criminal Procedure Act 51 of 1977. The
application for leave to appeal lies against this discharge.

[3]
In terms of the provisions of s 310(1) the Prosecutor-General or
other prosecutor may appeal against any decision given in favour of
an accused in a criminal case in a lower court including an order
made or sentence imposed by such lower court.

[4]
Section 310(2)(a) provides as follows:

‘A written notice of an
application referred to in subsec (1) shall be lodged with the
Registrar of the High Court by the Prosecutor-General or other
prosecutor, within a period of 30 days of the decision, sentence or
order of the lower court, as the case may be, or within such extended
period as may on application on good cause be allowed.’

[5]
The grounds advanced in support of the application for leave to
appeal are contained in the heads of argument filed by the applicant.
The respondents opposed this application.

[6]
In the heads of argument filed on behalf of the respondents the point
was taken that the application for leave was filed out of time
without any accompanying condonation application regarding the late
filing of the application for leave to appeal.

[7]
It is common cause that the respondents had been acquitted in the
Regional Court on 26 October 2012 and that the application for leave
to appeal was lodged on 8 November 2013.

[8]
It is trite law that where a notice (of an application for leave to
appeal) is filed out of time, the applicant must bring an application
for the condonation of the late filing of such notice. Such an
application must be in the form of an affidavit in which the reasons
for the failure to file the notice timeously are explained. This
explanation must be reasonable, bona fide, and acceptable. An
acceptable explanation must be provided not only for the delay in
noting an appeal but also in respect of any delay in seeking
condonation. In addition an applicant in such affidavit must deal
with the prospects of success on appeal in respect of the merits of
the case. (See The State v Karel Marthinus Theron an
unreported case of this court case no. CA 112/2002; S v Basson
2007 (3) SA 582 (CC) paras 155-156; Van Wyk v Unitas Hospital and
Another 2008 (2) SA 472 (CC) at paras 20, 22 and 30-34; Darries
v Sheriff Magistrate’s Court, Wynberg 1998 (3) SA 34 (SCA)
at 40I-41E; Von Abo v President of the Republic of South Africa
2009 (5) SA 345 (CC) at para 20; S v Van Heerden 2010 (1) SACR
539 (ECP) para 17).

[9]
The application for leave to appeal by the applicant has been lodged
more than eleven months outside the time limit prescribed by s
310(2)(a). The applicant has not dealt with the issue of
condonation at all. There is no application for condonation in which
the late filing of the application for leave to appeal is explained.
The applicant has totally disregarded the provisions of s 310(2)(a)
and this court therefore declines to consider applicant’s
application for leave to appeal.

[10]
In the result the following orders are made:

(a) The application for
leave to appeal is struck from the roll.

(b) In terms of s 310(7)
of Act 51 of 1977 the State is ordered to pay the costs the
respondents have been put to in opposing this application.

E
P B HOFF

Judge

APPEARANCES

APPELLANT
: E N Ndlovu

Office of the
Prosecutor-General, Windhoek

FIRST,
SECOND, THIRD AND

FOURTH
RESPONDENTS: J H Wessels

Stern & Barnard,
Windhoek

FIFTH
RESPONDENT: H Krűger

Krűger, Van Vuuren &
Co, Windhoek