Court name
High Court Main Division
Title

Ngoya v S () [2020] NAHCMD 406 (02 September 2020);

Media neutral citation
[2020] NAHCMD 406

REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

APPEAL JUDGMENT

 

Case Title:

Josef Hakaonde Ngoya v The State

Case No:         CC 10/2011

 

Division of Court:

Main Division

 

Heard before:

 

Honourable Mr. Justice Unengu, AJ

Delivered on:

 

02 September 2020

 

 

Neutral citation:      Ngoya v S (CC 10/2011) [2020] NAHCMD 406 (2 September 2020)

 

 

The order:

The application for leave to appeal to the Supreme Court against the sentence succeeds and is granted.

 

 

Reasons for order:

 

UNENGU, AJ:

[1]        This is an application for leave to appeal. The applicant was charged with the crime of murder before this court. He pleaded not guilty to the charge but was found guilty and convicted as charged after the trial and sentenced to an effective sixty (60) years imprisonment. This happened on 12 May 2006.

[2]        Not happy with the sentence imposed on him, the applicant on various occasions and without the assistance of a legal practitioner, attempted to appeal from the sentence but did not succeed.

[3]        On 6 August of instant with the assistance of the legal practitioners Uanivi Gaes Inc., the applicant filed an amended notice of appeal to this court against the sentence on the ground that the sentence of 60 years imposed on him has been declared unconstitutional. The notice was filed with an affidavit for condonation of the late noting and filing of the notice deposed to by his legal practitioner Mervyn Katuvesirauina explaining the cause for the delay in filing the notice of appeal timeously.

[4]        On 19 August 2020 at the hearing of the application, Mr Katuvesirauina appearing for the applicant informed the court that he wished to withdraw the application for leave to appeal due to defects in the application. However, Ms Verhoef counsel for the respondent rose up and submitted that to avoid a further delay of the application, she will not oppose the application despite the defects therein. She argued that the application has merits and that there were high prospects of success for the applicant to succeed on appeal in view of the judgment of Gaingob and others vs The State[1] which declared unconstitutional a sentence of a period of imprisonment exceeding 37 and half years as is the position in this matter.

[5]        Based on the concession of counsel for the respondent and the strong reasonable prospects of success on appeal, I condoned the defects in the application and allowed counsel to argue the application.

[6]        In the judgment of Gaingob and others supra, the Supreme Court found sentences exceeding the normal life expectancy of an offender and the term which would normally be ascribed to a prisoner sentenced to life imprisonment unconstitutional and directed that rather sentence an offender to life imprisonment where the court considered imposing a sentence in excess of 37 years and 6 months.

[7]        That being the case, and considering the finding by the Supreme Court in the Gaingob matter above, I am of the opinion that there are strong reasonable prospects of success on appeal and that the Supreme Court will interfere with the sentence of 60 years imprisonment imposed by this court on the applicant.

[8]        In the result, the application for leave to appeal to the Supreme Court against the sentence succeeds and is granted.

 

E P  UNENGU

ACTING JUDGE

 

Not applicable.

 

                              Counsel:

 

For the Applicant:

M Katuvesirauina

of Gaes-Uanivi Inc.

 Windhoek

For the Respondent:

A Verhoeff

of The Prosecutor-General’s Office

 Windhoek

 

 

 

 


[1] Case No SA 8/ 2008.