Haneb and Another v S (HC-MD-CRI-APP-CAL-2017/00009) [2018] NAHCMD 125 (11 May 2018);

Group

Full judgment

"ANNEXURE 11"

 

IN THE HIGH COURT OF NAMIBIA

(TO THE SUPREME COURT OF NAMIBIA)

Case Title:

JOHANNES HANEB                        1sr  APPELLANT

RICHARD USES                             2ND APPELLANT

versus THE STATE

Case No.:  HC-MD-CRI-APP-CAL-2017/00009

Neutral citation:        Haneb  v S (HC-MD- CRI-APP-CAL-2017/00009) (2018] NAHCMD

125 (11 May 2018)

 

Division of Court:

High Court Main Division

Tried before: SHIVUTE J et SIBOLEKA J

Date of Hearing: 11 May 2018

Date of Ruling: 11 May 2018

Result on merits (attach order):

THE ORDER:

1.   The application for condonation for the late filing of the notice of appeal is granted in respect of both appellants.

2.   The appeal against sentence in respect of each appellant succeeds.

3.   The sentence of 20 years imposed by the Regional Court is set aside and this court is at liberty to sentence each appellant afresh.

4.   Each appellant is sentenced to 8 years imprisonment back dated to 12 March 2010.

5.   Each appellant had already served 8 years and each should be released forthwith.

REASONS FOR DECISION (TO BE COMPLETED BY THE JUDGE):

(a)  Application for condonation is granted in respect of each appellant. Each appellant had prospects of success on prosecuting the appeal against sentence.

(b)  Each appellant was  sentenced  to 20 years imprisonment  being the   mandatory

sentence at the time of sentencing. However, the mandatory sentence was ruled unconstitutional in Daniel v Attorney General and Others 2011 (1) NR 330 (HC) AT 355-356.

 

(c) Although the stock that was stolen is worth N$ 1000, the appellants had already served 8 years of their sentence and this is the reason this court sentenced them afresh to 8 years, back dated to 12 March 2010. In any normal circumstances this court would not have sentenced any accused person to 8 years for stock theft worth N$1000.

Judge's signature:

Note to the parties:

N.N. Shivute:

I  Concur:

A.M.Siboleka:  

 

/                                                                          Counsel:

Mr Kamwi (For the first applellant)

Mr Brockerhoff (For the second appellant

Ms Esterhuizen(For the respondent)

 

 

 


HC-MD-CRI-APP-CAL-2017/00009

IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION,

HELD AT WINDHOEK

ON FRIDAY, THE 11t h  DAY OF MAY 2018 BEFORE  THE  HONOURABLE  JUSTICE  SHIVUTE et THE HONOURABLE  JUSTICE SIBOLEKA

 

In the matter between:

 

JOHANNES HANES                                     1st APPELLANT

RICHARD USEB                                           2nd APPELLANT

and

THE STATE                                             RESPONDENT

 


COURT ORDER


Having heard Mr. Kamwi for the first appellant and Mr. Brock erhoff for the second appellant, and Ms. Ester hui zen, on behalf of the respondent and having read the Application for HC-MD-CRI-APP-CAL-2017/00009and other documents filed of record

 

IT IS HEREBY ORDERED THAT:

1.  The applicatio n for condonation for the late filing of the notice of appeal is granted in respect of both appellants.

2. The appeal against sentence in respect of each appellant succ eeds.

3.  The sentence of 20 years imposed by the Regional Court is set aside and this court is at liberty to sentence each appellant afresh.

4. Each appellant is sentenced to 8 years imprisonment back dated to 12 March  2010.

5. Each appellant had already served 8 years and each should be released forthwith.

BY ORDER OF THE COURT

 

 

________________

Charlet Mokomele

Registrar of the High Court

Main Division Windhoek

 

TO:

TREVOR BROCKERHOFF

On  behalf  of  2nd Appellant

Mbudje & Brockerhoff Legal Practitioners

No. 9 Salk Street. Windhoek West

Windhoek

Khomas Namibia

KALUNDU KAMWI

On behalf of 1st Appellant

Sibeya & Partners Legal Practitioners M2 Floor

Channel Life Building Post Street Mall Windhoek

Namibia

Namibia

 

AND TO:

KARIN ESTERHU IZEN

On behalf of Respondent

Government - Office of the Prosecutor-General High Court Building Luderitz Street

Windhoek

Namibia

Namibia

 

AND TO:

 

 

 

 

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