Court name
High Court Main Division
Case name
Mathias v S
Media neutral citation
[2020] NAHCMD 313

“ANNEXURE 11”

IN THE HIGH COURT OF NAMIBIA

(TO THE SUPREME COURT OF NAMIBIA)

 

Case Title: Sakarias Mathias v State

 

Case No.: CC 3/2017

           

 

Division of Court

High Court Main Division

Heard before: SHIVUTE J

Date of Hearing: 29 June 2020

Date of Judgment: 24 July 2020

 

Judgment on Application for leave to appeal.

 

Neutral citation: Mathias v State ( CC 3/2017) [2020] NAHCMD 313 (24 July 2020)

 

In terms of Practice Direction 61 that came into operation on 1 January 2017 the following order is made.

 

THE ORDER:

       Application for leave to appeal against conviction and sentence is dismissed.

REASONS FOR ORDER:

SHIVUTE J

 

  1. The applicant in this matter was convicted of the following counts:

 

          1st count: Murder with direct intent.

          2nd count: Attempted murder.

          4th count: Possession of a firearm without a licence contravening section 2 read with

                          sections 1,8,10, 38 and 39 of Act 7 of 1996.

          5th count: Possession of 4 rounds of ammunition without him being in lawful

                          possession of a firearm that is capable of firing such ammunition,

                          contravening s 33 read with section 1,8,10 38 and 39 of Act 7 of 1996.

 

          6th count: Attempting to defeat or obstruct the course of justice.

 

2. This application rests on eight grounds of appeal against conviction and two grounds against sentence. The applicant was represented by Mr Brockerhoff whilst the respondent was represented by Mr Kumalo.

 

3. I have considered the grounds of appeal and supporting submissions on which the application rests as well as the opposing submissions from the respondent.

 

 

4. In considering an application for leave to appeal, it is trite law that the test is whether another court may reasonably come to a different conclusion. Furthermore, the applicant must satisfy the court that he or she has a reasonable prospect of success on appeal. Thus an application for leave to appeal should not be granted if it appears to the court that there is no reasonable prospect of success on appeal. It must also be borne in mind that a mere possibility that another court might come to a different conclusion is not sufficient to justify the grant of leave to appeal S v Nowaseb 2007 NR (2) 640 at 640 F – 641A.

 

5. This court was criticised for making a finding that there was no robbery that took place. The court arrived at the conclusion that no robbery took place because Imbili who allegedly witnessed the robbery never assisted the applicant. He never phoned the police or reported the matter to any authority. It is also highly unlikely that the robbers would run to a point of no return namely the bar that was a few meters away from the applicant’s shop. Furthermore, although when the applicant followed the alleged robbers into the bar to retrieve his money after he disabled Hawala, who was one of the alleged robbers, he never searched him and retrieved his money. Instead, he opted to leave the scene of crime and dispose of the firearm that he said was dropped by one of the alleged robbers when they were fleeing into the bar. If it is true that the firearm belonged to the robbers, why did the applicant not take it to the police as proof that he was robbed? Instead the applicant disappeared for some days and never reported to the police that he was robbed. The applicant’s conduct is not consistent with the conduct of a person who had been a victim of a serious crime.

 

6. The applicant contended that the court misdirected itself by making a finding that he was the owner of the bar. There is evidence from Sgt Tjikeama who testified that the bar belonged to the applicant. This evidence was not challenged through cross-examination. See p 207 of the record of proceedings.

 

7. For other grounds of appeal, the court gave a fully reasoned judgment when it convicted the applicant and I do not wish to recite them. This is in line with S v Nowaseb supra at 642 B-C where the court adopted the principle stated by Diemont JA in S v Sikosana 1980 (4) SA 559 (AD) at 562 H –  563 A that:

 

‘If he (the judge) decides to refuse the application, he must give his reasons (see s316

(6) of Act 51 of 1977). It may be that his reasons for his refusal will appear from the

reasons for convicting. (RV White 1952 (2) SA 538 (A) at 540) but where he decides to

grant the application his reasons for so doing are less likely to be found in his judgment’.

 

8. With regard to sentence, the applicant raised two grounds namely; the sentence imposed by the court under the circumstances is shockingly inappropriate and that the court unjustifiably overemphasised the seriousness of the offences at the expense of mitigating factors.

 

          In S v Pillay 1977 (4) SA 531 (AD) at 535 E it was stated that:

                  ‘The essential inquiry in an appeal against sentence, however, is not whether the

                     sentence was right or wrong, but whether the Court in imposing it exercised its

                     discretion properly and judicially…’

 

9. In the present matter, the court has given its reasons for conviction and sentence and is of the opinion that it exercised its discretion properly and judiciously. It follows that the principles that warrant an appeal court to interfere with the conviction and sentence do not find application in this case. It is my view that the applicant has failed to show that he has a reasonable prospect of success on appeal.

 

 

10.  In the result ,the following order is made:

 

                   The application for leave to appeal against conviction and sentence is dismissed.

Judge signature:

 

 

 

N.N. Shivute:

 

 

Counsel:

Mr Brockerhoff (For the Applicant)

Brockerhoff and Associates

Windhoek

 

 

Mr Kumalo (For the Respondent)

Office of the Prosecutor General

Windhoek