Court name
High Court
Case number
CA 50 of 2008
Case name
Nakangombe v S
Media neutral citation
[2009] NAHC 127





JUDGMENT:















CASE NO. CA 50/2008


NOT
REPORTABLE



IN
THE HIGH COURT OF NAMIBIA











In the matter between:










FRANS
NAKANGOMBE APPELLANT










and










THE
STATE RESPONDENT















CORAM: HOFF,
J.
et
SWANEPOEL, A.J.











Heard on: 2009.11.13







Delivered on: 2009.11.13 (Ex
tempore)



_____________________________________________________________________







APPEAL JUDGMENT















HOFF, J: [1] The
appellant was convicted in the Magistrate Court on three counts,
namely, firstly the unlawful possession of a machine gun (AK 47), in
contravention of the provisions of section 29(1)(a) of Act 7 of 1996,
the Arms and Ammunition Act, secondly, in possession of a
firearm(Tokarev pistol) without a licence, in contravention of
section 2 of Act 7 of 1996, thirdly, the unlawful possession of
ammunition, (60 AK 47 cartridges and 6 Tokarev cartridges) in
contravention of the provisions of section 39 of Act 7 of 1996.



[2] He was sentenced as follows: count
1, ten years imprisonment, count 2, three years imprisonment and
count 3, one year imprisonment. The magistrate ordered that the
sentences imposed in counts 2 and 3 run concurrently with the
sentences imposed in count 1.







[3] In terms of the provisions of
section 10(6), 10(7) and 10(8) of the Arms and Ammunition Act 7 of
1996, the magistrate declared the appellant unfit for a period of 5
years to possess a firearm.







[4] On the 30th
of August 2005, the appellant filed a notice of appeal in which he
set out his grounds of appeal. He appealed against sentence only.
The appellant was unrepresented in the magistrate’s court and
the matter went on an automatic review. The Judge President caused
the matter to be enrolled directing the Society of Advocates to
assign an
amicuis curiae
to argue the matter on behalf of the accused, in open Court. The
Court requested counsel to address three questions. Firstly, whether
the learned magistrate was correct in holding that section 38(2) of
Act 7 of 1996 places an obligation on the courts to impose direct
imprisonment sentences for contravention of Section 29(1)(a).
Secondly, considering that he took judicial notice of the increase in
that type of offence in his district, was the learned magistrate not
required to inform the accused of what he sought to do and afford him
the opportunity to address the court thereon ? Thirdly, does the
sentence imposed not induce a sense of shock?







[5] This Court, (Damaseb, JP and Van
Niekerk J), found in the affirmative in respect of all three
questions posed. The sentences imposed by the magistrate were set
aside and substituted with the following sentences: count 1, five
years imprisonment, count 2, two years imprisonment, count 3, six
months imprisonment. The sentences imposed in respects of counts 2
and 3 were ordered to run concurrently. (See case No. 109/2005
delivered on 15
th
September 2006).







[6] I suspect that when the matter was
argued on review, the court was oblivious of the pending appeal
against sentence by the appellant. The appellant has informed the
Court this morning that he had not been aware of the review court’s
ruling. My understanding of what was conveyed to this Court by the
appellant was that had he known of that review judgment, he would not
have prosecuted this appeal. The appellant has now informed the court
that he abandons the appeal.







[7] I must just add that the review
court confirmed the magistrate’s order in the Court
a
quo,
in terms of the
provisions of the Arms and Ammunition Act, specifically section
10(6), (7) and (8) declaring the appellant unfit to possess a
firearm.







[8] The consequences of abandoning the
appeal means that the appellant before court today, has to serve the
sentences pronounced by the review court. In practice, it means that
he has from today to serve a five year term of imprisonment. Since
the appellant has abandoned the appeal, this court need not comment
on any ground of appeal in this regard.







[9] The State is ordered to complete
the necessary warrant of committal to facilitate the detention of the
appellant.







[10] The appeal is accordingly struck
from the roll.



















_________



HOFF, J:











I agree



















_______________



SWANEPOEL, AJ



















































ON BEHALF OF THE APPELLANT:
IN PERSON











Instructed by:















ON BEHALF OF THE RESPONDENT:
ADV. EIXAB











Instructed by
OFFICE OF THE PROSECUTOR-GENERAL