Court name
High Court Main Division
Case number
CA 57 of 2012
Title

S v Moyo (CA 57 of 2012) [2013] NAHCMD 7 (17 January 2013);

Media neutral citation
[2013] NAHCMD 7
Coram
Shivute J
Siboleka J













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: CA 57/2012








JUSTINE MOYO
..........................................................................................APPELLANT



Versus



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








Neutral citation: Moyo
v State
(CA 57/2012) [2013] NAHCMD 7 (17 January 2013)








Coram: SHIVUTE, J
et SIBOLEKA, J



Heard: 23
November 2012



Reasons released:
17 January 2013








SHIVUTE J (SIBOLEKA J
concurring):








[1] The appellant
appeared in the magistrate’s court Katima Mulilo on 21 November
2011, charged with the offence of house breaking with intent to steal
and theft. He pleaded guilty to the charge and was convicted of the
offence charged. He was sentenced on the same date to two (2) years’
imprisonment.








[2] On 23 November 2012
we heard his appeal against conviction and sentence. We dismissed the
appeal and indicated that reasons were to follow. These are the
reasons:








[3] As stated earlier the
appellant was convicted and sentenced on 21 November 2011. He lodged
his notice of appeal on 8 May 2012. He filed an application for
condonation for filing his notice of appeal late accompanied by a
supporting affidavit also dated 8 May 2012.








[4] The Appellant’s
notice of appeal was lodged about six (6) months out of time. The
appellant gave reasons for his failure to note his appeal within the
prescribed time as follows:








After his conviction and
sentence his intention was to lodge an appeal. He was advised to get
a legal representative to lodge his appeal. Meanwhile his family was
organizing to raise funds for the legal practitioner. The appellant
was transferred from Katima Mulilo to Grootfontein and lost touch
with his family in Zimbabwe and Zambia. As a layman, he did not
possess the knowledge to file a notice of appeal.








[5] We gave due
consideration to the explanation offered by the appellant and we had
decided to hear the merits of the case.








[6] The appellant pleaded
guilty to the charge and the court proceeded in terms of section 112
1 (b) of the Criminal Procedure Act, Act 51 of 1977, to determine
whether the appellant was really tendering a plea of guilty. After
the court satisfied itself it convicted the appellant. The
appellant’s plea was an unequivocal plea of guilty.








[7] However, the
appellant in his grounds of appeal stated that the prosecutor told
him that if he pleads guilty a lenient sentence would be imposed.
Furthermore the court should have entered a plea of not guilty,
because he pleaded guilty conditionally as he told the learned
magistrate that he entered the house by opening with a key. These
claims are not borne out by the evidence on record. On the contrary
the appellant told the learned magistrate that he entered the house
through the door that was locked. He forced it open using a spade.
There appears to be the only grounds of appeal against conviction
because the rest of the grounds concern alleged, irregularity omitted
during the trial whilst there was in fact no trial. The appellant
tendered a plea of guilty and I see no reason why the court should
have entered a plea of not guilty. I am satisfied that the court did
not misdirect itself by convicting the appellant on his own admission
of guilt.








[8] As far as the
sentence is concerned, the appellant claimed that he was misled by
the prosecutor that if he pleads guilty a lenient sentence of 8
months imprisonment or a fine would be imposed by the court. He
further stated that the sentence imposed induces a sense of shock; is
totally inappropriate and too severe. He argued that the learned
magistrate failed in law or fact by not considering that the
appellant is a first offender, with a family to support; that he is
not a danger to the society and that the magistrate failed to elicit
adequate personal factors and his financial position.








[9] It is apparent from
the record that the trial magistrate when sentenced the appellant,
she considered that the offence committed was very serious, that he
is not a first offender. In arriving at the appropriate sentence the
court had taken into account the personal circumstances of the
appellant and the interest of the community and came to the
conclusion that a custodial sentence is the only appropriate sentence
that could deter the accused and would be offenders from committing
this offence.








[10] It is trite law that
the sentence which the trial court imposes on an accused person is in
the discretion of such court. This is a judicial discretion which
must be exercised in accordance with judicial principles.



S v Tjiho, 1991 NR
361 (HC) at 366A-B.



Although the appeal court
has a right to interfere with the discretion of the court a quo,
there is no reason for us to interfere with the sentence because we
did not find it to be too severe; inappropriate or inducing a sense
of shock. There is nothing showing that the trial magistrate
misdirected herself or that she did not exercise her discretion
properly and judiciously.








[11] The offence of
housebreaking with intent to steal and theft is serious as the
magistrate rightly pointed out; a custodial sentence was therefore
called for. The accused is not a first offender we are satisfied that
the sentence imposed is appropriate.








[12] It was for this
reasons that the following order was made.








The appeal is dismissed.




























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



N N Shivute



Judge




























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



A SIBOLEKA



Judge











































APPEARANCES








APPELLANT : In Person



c/o Grootfontein Prison








RESPONDENT: Ms Ndlovu



Of
Office of the Prosecutor-General Windhoek.